                                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              ______________

                   No. 16-1200
                 ______________

         UNITED STATES OF AMERICA,
                            Appellant
                    v.

              CAROLYN JACKSON
                ______________

                   No. 16-1201
                 ______________

         UNITED STATES OF AMERICA,
                            Appellant
                    v.

                JOHN E. JACKSON
                 ______________

   On Appeal from the United States District Court
             for the District of New Jersey
(D.N.J.. Nos. 2-13-cr-00290-001 & 2-13-cr-00290-002)
    Honorable Katharine S. Hayden, District Judge
                    ______________
                  Argued February 7, 2017

BEFORE: MCKEE, COWEN, and FUENTES, Circuit
Judges

                    (Filed: July 6, 2017)
                     ______________

Mark E. Coyne
John F. Romano       [Argued]
Office of United States Attorney
970 Broad Street, Room 700
Newark, N.J. 07102
   Counsel for Appellants

Rubin M. Sinins
Herbert I. Waldman         [Argued]
Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins
505 Morris Avenue
Springfield, N.J. 07081
   Counsel for Appellee in No. 16-1200

Louise Arkel         [Argued]
Carol Gillen
David A. Holman
Office of the Federal Public Defender
1002 Broad Street
Newark N.J. 07102
   Counsel for Appellee in No. 16-1201




                             2
                       ______________

                 OPINION OF THE COURT
                     ______________

COWEN, Circuit Judge.

       John and Carolyn Jackson (“John” and “Carolyn”) were
convicted of conspiracy to endanger the welfare of a child and
endangering the welfare of a child under New Jersey law—
offenses that were “assimilated” into federal law pursuant to the
Assimilative Crimes Act (“ACA”). The United States District
Court for the District of New Jersey sentenced Carolyn to 24
months of imprisonment (as well as three years of supervised
release). John received a sentence of three years of probation
(together with 400 hours of community service and a $15,000
fine). The government appeals from these sentences.

       We will vacate the sentences and remand for
resentencing. Concluding that there is no “sufficiently
analogous” offense guideline, the District Court declined to
calculate Defendants’ applicable sentencing ranges under the
Guidelines. Although we adopt an “elements-based” approach
for this inquiry, we conclude that the assault guideline is
“sufficiently analogous” to Defendants’ offenses of conviction.
Furthermore, the District Court failed to make the requisite
findings of fact—under the applicable preponderance of the
evidence standard—with respect to this Guidelines calculation
as well as the application of the statutory sentencing factors.
We also agree with the government that the District Court, while
it could consider what would happen if Defendants had been
prosecuted in state court, simply went too far in this case by




                               3
focusing on state sentencing practices to the exclusion of federal
sentencing principles. Finally, the sentences themselves were
substantively unreasonable.

                                 I.

       John, a major in the United States Army, and Carolyn, his
wife, were the biological parents of three children, including
“JJ.” They also became the foster parents of three young
children: Joshua (born on May 13, 2005), “J” (born on April 1,
2006), and “C” (born on April 7, 2008). The three children were
eventually adopted. Joshua died on May 8, 2008.

        Defendants were charged in a fifteen-count superseding
indictment. These counts can be organized into three different
categories: an assimilated state conspiracy charge, assimilated
state substantive offenses, and substantive charges under federal
law. These offenses occurred (at least in part) within the special
maritime and territorial jurisdiction of the United States, i.e., at
Picatinny Arsenal Installation in Morris County, New Jersey.

       Count 1 charged John and Carolyn with conspiracy to
endanger the welfare of a child—Joshua, J, and C—under N.J.
Stat. Ann. §§ 2C:24-4a and 2C:5-2—assimilated pursuant to the
ACA. From August 2005 through April 23, 2010, Defendants,
“for the purpose of promoting and facilitating conduct which
endangered the welfare of a child, did agree with each other to
engage in acts which constituted endangering the welfare of a
child whom they had assumed responsibility for and accepted a
legal duty to care for, namely, [Joshua, J, and C].” (A35-A36.)
They carried out this conspiracy by, inter alia, physically
assaulting the children with various objects and with their hands,




                                 4
withholding proper medical care (and failing to seek prompt
medical attention for Joshua and C), withholding sufficient
nourishment from the children (and adequate water from J and
C), forcing J and C to consume food that caused them pain and
suffering, such as red pepper flakes, hot sauce, and/or raw
onion, causing C to ingest excessive sodium or sodium-laden
substances, and employing cruel and neglectful disciplinary and
child-rearing techniques.

        Counts 2 to 12 and Count 15 charged offenses under
assimilated New Jersey law for endangering the welfare of a
child (and aiding and abetting such endangerment) in violation
of § 2C:24-4a and 18 U.S.C. § 2. Specifically, Defendants
allegedly caused harm to the children in various ways, made
them “neglected” children, and children “upon whom cruelty
had been inflicted, as defined in N.J.S.A. Sections 9:6-1 and
9:6-3.” (A39-A49, A52.) Counts 2 and 7 alleged that
Defendants withheld sufficient nourishment and food from
Joshua and C, respectively. Counts 4 and 8 similarly alleged
that they withheld adequate water from J and C and prohibited
these two children from drinking water. Counts 3, 6, and 12
charged that Defendants “physically assault[ed] [Joshua, J, and
C, respectively] with various objects and with their hands.”
(A40, A43, A49.) In Counts 5 and 9, it was alleged that
Defendants forced J “to ingest hot sauce, red pepper flakes, and
raw onion” (A42) and C “to ingest hot sauce and red pepper
flakes” (A46). Count 10 claimed that Defendants “caus[ed] [C]
to ingest excessive sodium and a sodium-laden substance while
restricting [C’s] fluid intake, causing [C] to suffer
hypernatremia and dehydration, a life threatening condition.”
(A47.) Count 11 then charged Defendants with withholding
prompt and proper medical care for C’s dehydration and




                               5
elevated sodium levels. Finally, Count 15 alleged that
Defendants withheld prompt and proper medical care for C’s
fractured humerus.

        Defendants were also accused of assaulting C with a
dangerous weapon with intent to do bodily harm (and aiding and
abetting this assault) in violation of 18 U.S.C. §§ 113(a)(3) and
2 (Count 13) as well as with intentionally assaulting C (and
aiding and abetting such an assault) resulting in serious bodily
injury in violation of 18 U.S.C. §§ 113(a)(6) and § 2 (Count 14).

       Trial commenced on April 13, 2015, and lasted 39 days.1
 At the close of the government’s case, the District Court
granted judgments of acquittal on Counts 13 and 14. On July 8,
2015, the jury returned guilty verdicts on Counts 1 to 12 as to
Carolyn and on Counts 1, Counts 3 to 9, and Counts 11 to 12 as
to John. Accordingly, both Defendants were acquitted on Count
15 (renumbered as Count 13), and John was found not guilty on
Counts 2 and 10.

       Using the offense guidelines for assault, U.S.S.G. §
2A2.3, and aggravated assault, U.S.S.G. § 2A2.2, the Probation
Office calculated both Defendants’ Guidelines range as 210 to
262 months. The government similarly calculated a sentencing
range of 292 to 365 months. It sought sentences of 235 months
for Carolyn and 188 months for John. A 10 1/2-hour sentencing
was held on December 15, 2015. At the sentencing hearing, the
District Court rendered an especially thorough ruling on the
record. Declining to calculate a Guidelines sentence, it

       1
        An earlier trial ended in a mistrial when the government
asked a question suggesting that Joshua was no longer alive.




                               6
ultimately sentenced Carolyn to a term of imprisonment of 24
months (as well as three years of supervised release). John was
sentenced to three years of probation (as well as 400 hours of
community service and a $15,000 fine).2

                                II.

      The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This Court has appellate jurisdiction pursuant to 18
U.S.C. § 3742(b). As required by § 3742(b), the Solicitor
General personally authorized the government to appeal.

       2
         The District Court also struck the assertions regarding
the offense conduct set forth in the Presentence Investigation
Reports (“PSRs”) because they were written by the government,
no independent investigation was conducted by the Probation
Office, no countervailing evidence was referenced, and certain
paragraphs were related to extraneous guidelines.

       Additionally, the District Court had the benefit of a
lengthy decision by the Appellate Division of the New Jersey
Superior Court, which affirmed the judicial determination that
Defendants abused and neglected J, C, and JJ and the
termination of their parental rights as to these three children but
reversed the state family judge’s finding of abuse and neglect
with respect to two other children [their other two biological
children]. See N.J. Div. of Child Prot. & Permanency v. C.J.,
2014 WL 3881311 (N.J. Super. Ct. App. Div. Aug. 8, 2014) (per
curiam); see also N.J. Div. of Child Prot. & Permanency v. C.J.,
2016 WL 4608231 (N.J. Super. Ct. App. Div. Sept. 6, 2016) (per
curiam) (holding that trial court erred in granting kinship legal
guardianship as to the two biological children).




                                7
       This case implicates a number of rather unusual
sentencing issues. This is not surprising because Defendants
were not convicted and sentenced for committing enumerated
federal crimes of the sort that federal courts consider on a
regular basis. Instead, they were convicted and sentenced in
federal court for state law offenses “assimilated” into federal
law pursuant to a federal statute, the ACA. The ACA provides
that:

       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 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). This statute, which in its original form dates
back to the 1820s, is designed to borrow state laws in order to
fill gaps that exist in federal criminal laws with respect to
criminal offenses that are committed on federal enclaves. See,
e.g., Lewis v. United States, 523 U.S. 155, 160-61 (1998).

       However, setting aside these special circumstances, we




                                 8
look to the generally applicable post-Booker sentencing process.
 The sentencing court must engage in the following three-step
process:     (1) calculate the defendant’s (now advisory)
Guidelines range; (2) formally rule on the parties’ motions for
departure and, if a motion is granted, state how the departure
affects the Guidelines calculation; and (3) consider the statutory
sentencing factors specified in 18 U.S.C. § 3553(a) and
determine the appropriate sentence to impose. See, e.g., United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2014) (en banc).
We review sentences for both procedural as well as substantive
reasonableness. See, e.g., id.

                               III.

A.     “Sufficiently Analogous” Offense Guidelines

       We begin, as we must, with the Guidelines. Pursuant to
U.S.S.G. § 2X5.1, the sentencing court, in cases where the
offense is a felony for which no guideline expressly has been
promulgated, applies the “most analogous” offense guideline.
Defendants are correct that this Court should adopt an
“elements-based” approach to this inquiry—which calls for a
comparison between the elements of the offense of conviction
with the purportedly analogous offense guideline and the
elements of the various federal offenses covered by this
guideline. However, we also agree with the government that,
under this approach, the assault guideline is “sufficiently
analogous” to Defendants’ offenses of conviction. The District
Court accordingly committed reversible error by concluding that
there is no “sufficiently analogous” offense guideline in this
case.




                                9
        The “Applications Instructions” direct the sentencing
court to begin by “[d]etermin[ing], pursuant to § 1B1.2
(Applicable Guidelines), the offense guideline section from
Chapter Two (Offense Conduct) applicable to the offense of
conviction.” U.S.S.G. § 1B1.1(a)(1) (citing U.S.S.G. § 1B1.2).
U.S.S.G. § 1B1.2(a) (“Applicable Guidelines”) states, inter alia,
that the sentencing court should “[d]etermine the offense
guideline section in Chapter Two (Offense Conduct) applicable
to the offense of conviction (i.e., the offense conduct charged in
the count of the indictment or information of which the
defendant was convicted).” This guideline provides basic
instructions on how to identify the offense guideline section:

       Refer to the Statutory Index (Appendix A) to
       determine the Chapter Two offense guideline,
       referenced in the Statutory Index for the offense
       of conviction.      If the offense involved a
       conspiracy, attempt, or solicitation, refer to
       §2X1.1 (Attempt, Solicitation, or Conspiracy) as
       well as the guideline referenced in the Statutory
       Index for the substantive offense. For statutory
       provisions not listed in the Statutory Index, use
       the most analogous guideline. See § 2X5.1
       (Other Offenses).

Id.

       The Sentencing Commission’s commentary explains that
§ 1B1.1 provides the basic rules for determining the guideline
applicable to the offense conduct under Chapter Two (Offense
Conduct). “The court is to use the Chapter Two guideline
section referenced in the Statutory Index (Appendix A) for the




                               10
offense of conviction.” U.S.S.G. § 1B1.2 cmt. n.1. “However, .
. . for statutory provisions not listed in the Statutory Index, the
most analogous guideline, determined pursuant to § 2X5.1
(Other Offenses), is to be used.” Id. “In the case of a particular
statute that proscribes only a single type of criminal conduct, the
offense of conviction and the conduct proscribed by the statute
will coincide, and the Statutory Index will specify only one
offense guideline for that offense of conviction.” Id. The
commentary to §1B1.2 also deals with the situation where the
particular statute proscribes a variety of conduct that might
constitute the subject of different offense guidelines—and the
Statutory Index specifies more than one offense guideline for
that particular statute: “[T]he court will determine which of the
referenced guideline sections is most appropriate for the offense
conduct charged in the count of which the defendant was
convicted.” Id. “For statutory provisions not listed in the
Statutory Index, the most analogous guideline is to be used. See
§ 2X5.1 (Other Offenses”).” Id.; see also id. (“If the offense
involved a conspiracy, attempt, or solicitation, refer to §2X.1
(Attempt, Solicitation, or Conspiracy) as well as the guideline
referenced in the Statutory Index for the substantive offense.”).

       U.S.S.G. § 2X5.1 (“Other Felony Offense”) states the
following:

       If the offense is a felony for which no guideline
       expressly has been promulgated, apply the most
       analogous offense guideline. If there is not a
       sufficiently analogous guideline, the provisions of
       18 U.S.C. § 3553 shall control, except that any
       guidelines and policy statements that can be
       applied meaningfully in the absence of a Chapter




                                11
       Two offense guideline shall remain applicable.

       If the defendant is convicted under 18 U.S.C. §
       1841(a)(1), apply the guideline that covers the
       conduct the defendant is convicted of having
       engaged in, as that conduct is described in 18
       U.S.C. § 1841(a)(1) and listed in 18 U.S.C. §
       1841(b).

       The commentary to § 2X5.1 states in relevant part that
this guideline applies only to felony offenses not referenced to
Appendix A (Statutory Index) (and accordingly U.S.S.G. §
2X5.2 (Class A Misdemeanors (Not Covered by Another
Specific Offense Guideline)) should be used for Class A
misdemeanors)). U.S.S.G. § 2X5.1 cmt. n.3. It then states:

       Background:         Many offenses, especially
       assimilative crimes, are not listed in the Statutory
       Index or in any of the lists of Statutory Provisions
       that follow each offense guideline. Nonetheless,
       the specific guidelines that have been
       promulgated cover the type of criminal behavior
       that most such offenses proscribe. The court is
       required to determine if there is a sufficiently
       analogous offense guideline, and, if so, to apply
       the guideline that is most analogous. In a case in
       which there is no sufficiently analogous guideline,
       the provisions of 18 U.S.C. § 3553 control.

       The sentencing guidelines apply to convictions
       under 18 U.S.C. § 13 (Assimilative Crimes Act)
       and 18 U.S.C. § 1153 (Indian Major Crimes Act);




                               12
       see 18 U.S.C. § 3551(a), as amended by section
       1602 of Public Law 101-647.

Id. cmt. background.

        There are three basic tests that could be used to identify a
“sufficiently analogous” offense guideline: (1) an “elements-
based” approach, i.e., “[w]hether there is a sufficiently
analogous guideline to a particular crime is generally a task of
comparing the elements of the defendant’s crime of conviction
to the elements of federal offenses already covered by a specific
guideline,” United States v. Nichols, 169 F.3d 1255, 1270 (10th
Cir. 1999) (citing United States v. Allard, 164 F.3d 1146, 1149
(8th Cir. 1999); United States v. Osborne, 164 F.3d 434, 437
(8th Cir. 1999)); (2) “comparing various Guidelines to ‘the facts
alleged in the indictment’” (Appellant’s Brief at 28 (quoting
United States v. McEnry, 659 F.3d 893, 899-901 (9th Cir.
2011))); or (3) a broader approach in which the sentencing court
must take into account all of the circumstances and make factual
findings to support its ultimate selection. Although it contends
that “the assault Guidelines are sufficiently analogous offense
Guidelines” under the “elements-based” approach (id. at 33), the
government asks the Court to adopt the second test, what we call
the “indictment-facts” approach. We, however, determine that
the “elements-based” approach should apply.3

       Initially, the precedential “indictment-facts” case law
cited by the government generally “pertain to the scope of

       3
        No one suggests that the sentencing court should decide
whether there is a “sufficiently analogous” offense guideline
based on its own findings of fact.




                                13
inquiry when more than one guideline is assigned to a statute or
when no guideline is assigned and the court determines that
more than one guideline is sufficiently analogous [and must
therefore select the ‘most analogous’ offense guideline].”
(John’s Brief at 24.) In United States v. Boney, 769 F.3d 153
(3d Cir. 2014), cert. denied, 135 S. Ct. 1003 (2015), this Court
concluded that the district court failed to select the “most
appropriate” offense guideline for the offense conduct charged
in the counts of which the defendant was convicted pursuant to
Application Note 1 of § 1B1.2, id. at 154-63. Likewise, we
considered in United States v. Aquino, 555 F.3d 124 (3d Cir.
2009), which of two offense guidelines specified in the Statutory
Index for a particular federal offense was the “most appropriate”
guideline under this § 1B1.2 commentary and then applied the
respective offense guidelines’ cross-references, id. at 125-31. In
another Third Circuit case cited by the government, we
specifically addressed several issues that arose as a consequence
of the sentencing court applying the “most analogous” offense
guideline. United States v. Cherry, 10 F.3d 1003, 1005 (3d Cir.
2003) (“This appeal requires us to decide several issues which
arise when the United States Sentencing Guidelines . . . do not
contain a provision expressly applicable to the offense for which
a defendant has been convicted and the district court applies a
guideline deemed to be most analogous to the offense of
conviction.”).

      While the government does not cite to any precedential
opinion adopting its understanding of the “sufficiently
analogous” guideline inquiry,4 the Fifth, Eighth, and Tenth

       4
       In a § 2X5.1 appeal, the Ninth Circuit refused to express
an opinion “as to whether the district court’s look to the




                               14
Circuits have adopted the “elements-based” approach. This
approach began with the Eighth Circuit’s 1999 ruling in United
States v. Osborne, 164 F.3d 434 (8th Cir. 1999).

        According to the Eighth Circuit, “[t]he first step of the
USSG § 2X5.1 analysis is to determine whether there are any
guidelines which are sufficiently analogous to the defendant’s
crime; if there are no sufficiently analogous guidelines, then
the defendant is to be sentenced using the general provisions
of 18 U.S.C. § 3553(b),” id. at 437 (footnote omitted) (citing
United States v. Cefalu, 85 F.3d 964, 966-69 (2d Cir. 1996)).
The Osborne court held that a de novo standard of review
applies to this initial step because, among other things, “the
issue most generally will involve comparing the elements of
federal offenses to the elements of the crime of conviction.”
Id.; see also id. (“Secondly, a determination that there is not a
sufficiently analogous guideline will require the district court
to impose sentence under 18 U.S.C. § 3553(b), which we are
convinced is a legal issue.”).


allegations in the indictment to select the appropriate guideline
would have been permissible in this case.” United States v.
McEnry, 659 F.3d 893, 901 n.13 (9th Cir. 2011). “Moreover,
because this case does not present a situation where more than
one guideline is ‘sufficiently analogous’ to McEnry’s crime of
conviction, U.S.S.G. § 2X5.1, we express no opinion about
whether the court might be permitted to look to more facts in
such a case.” Id. An unpublished per curiam disposition by the
Fourth Circuit was the only decision cited by the government
that looked to the facts alleged in the indictment as part of its
“sufficiently analogous” guideline analysis. See United States v.
Centner, 116 F.3d 473, at *1-*4 (4th Cir. 1997) (per curiam).




                               15
        The government takes issue with this ruling, claiming
that the Eighth Circuit offered no support for its approach. But
the Osborne court did offer a persuasive explanation based on
the Background Note to § 2X5.1 and the distinction the
Sentencing Commission draws between a “sufficiently
analogous” offense guideline, on the one hand, and the “most
analogous” such guideline, on the other hand:

               The background note to USSG § 2X5.1
       states specifically, “The court is required to
       determine if there is a sufficiently analogous
       guideline and, if so, to apply the guideline that is
       most analogous. Where there is no sufficiently
       analogous guideline, the provisions of 18 U.S.C. §
       3553(b) control.” USSG 2X5.1, comment.
       (backg’d). This portion of the application note
       mandates a two-step analysis, and makes
       abundantly clear that there is a difference between
       a situation where the district judge is choosing the
       most analogous guideline among sufficiently
       analogous guidelines, and a situation where there
       is no sufficiently analogous guideline. In
       construing the guideline and the application note,
       we must give meaning to each of these terms.

Id.5

       5
       The Eighth Circuit thereby quoted from an older version
of the commentary. However, the current version of this
language is essentially indistinguishable. See § 2X5.1 cmt.
background (“The court is required to determine if there is a




                               16
        The Eighth Circuit went on to conclude that a deferential
standard of review applies to the district court’s “most
analogous” guideline selection, indicating that the district court
must take into account the circumstances of the case and make
its own factual findings. Id. at 437-38. “Absent an indication
that the district court misunderstood the legal standards, that is,
it misunderstood the elements of the state offense or the
analogous federal offenses, we will defer to its judgment as to
how the facts fit into those elements.” Id. at 438 (citing United
States v. Mariano, 983 F.2d 1150, 1158 (1st Cir. 1993)).
Furthermore, the Osborne court noted that choosing the “most
analogous” offense guideline involves more than just
interpretation of the various guidelines (but instead implicates
the applicability of different guidelines to the facts). Id.

       In this case, the government agrees with the Eighth
Circuit that “[w]hether there is a sufficiently analogous offense
Guideline is a legal question subject to plenary review.”
(Appellant’s Brief at 25 (citing United States v. Cothran, 286
F.3d 173, 176-77 (3d Cir. 2002); Aquino, 555 F.3d at 127).)
According to the Osborne court, the divergent standards of
review strike the appropriate balance between avoiding
unwarranted sentencing disparities and imposing individualized
sentences. Id. “With appellate courts reviewing the sufficiency
question de novo, defendants will not receive sentences based
on wholly inapplicable guidelines.” Id. Nevertheless, § 2X5.1


sufficiently analogous offense guideline, and, if so, to apply the
guideline that is most analogous. In a case in which there is no
sufficiently analogous guideline, the provisions of 18 U.S.C. §
3553 control.”)




                                17
cases “are inherently out of the ordinary; the Commission does
not offer a predetermined guideline or offense level.” Id. “By
giving due deference to the district court’s choice of the most
analogous guideline, district courts will have more freedom to
fashion the appropriate sentence in these unconventional
situations on a case by case basis.” Id.; see also United States v.
Allard, 164 F.3d 1146, 1147-50 (8th Cir. 1999) (companion case
to Osborne applying same principles).

       The Fifth Circuit as well as the Tenth Circuit have
followed the Eighth Circuit’s example by comparing the
elements of the defendant’s offense of conviction with the
elements of federal offenses covered by a specific offense
guideline in order to ascertain whether, as a legal matter, this
guideline is “sufficiently analogous” to the offense of
conviction. See, e.g., United States v. Rakes, 510 F.3d 1280,
1287-88 (10th Cir. 2007); United States v. Calbat, 266 F.3d 358,
363 (5th Cir. 2001); Nichols, 169 F.3d at 1269-71.

      In support for its assertion that a plenary standard of
review applies to this inquiry, the government cites to our
opinion in United States v. Cothran, 286 F.3d 173 (3d Cir.
2002). Cothran strongly weighs in favor of the “elements-
based” approach.

        In that case, the defendant was convicted of conveying
false information and threats about carrying an explosive device
on an airplane in violation of 49 U.S.C. § 46507, and he
contested the district court’s “finding that the United States
Sentencing Guideline (U.S.S.G.) § 2A6.1 [(Threatening or
Harassing Communications)] was the most analogous offense
guideline for Cothran’s crime [as opposed to U.S.S.G. § 2K1.5




                                18
(Possessing Dangerous Weapons or Materials While Boarding
or Abroad an Aircraft)].” Id. at 174. Observing that the courts
are split vis-à-vis the applicable standard of review, we turned to
Osborne’s “comprehensive and cogent analysis of the standard
to be applied.” Id. at 176.

        “The [Eighth Circuit] noted that there is a two-step
process involved: first, the district court must determine
whether there is a sufficiently analogous offense guideline,
and, if there is, it then must determine which guideline is most
analogous.” Id. at 177 (citing Osborne, 164 F.3d at 437). It
“held that the first step, determining whether there is a
sufficiently analogous guideline, is a legal question and is
reviewed de novo.” Id. (citing Osborne, 164 F.3d at 437).
According to Cothran, the Osborne court correctly identified
the standard of review to apply to the first step “[b]ecause
determining whether there is an analogous guideline is
substantially interpreting and applying the guidelines.” Id.
The Cothran Court then accepted Osborne’s “logical” analysis
with respect to the “most analogous” guideline inquiry,
applying a deferential standard of review as to the district
court’s factual findings and application of the guidelines to
these facts. Id. (citing Calbat, 266 F.3d at 363 n.1).

        While the Cothran Court did not specifically mention
Osborne’s “elements” language (and did not actually conduct
the initial “sufficiently analogous” guideline inquiry), we did
express approval for the Eighth Circuit’s “cogent” analysis of
the applicable standards of review. The Eighth Circuit adopted
these standards for the “sufficiently analogous” guideline
inquiry specifically because the first step would require district
courts to look only to the elements, while the second step would




                                19
require factual findings. Cothran thus adopted the elements-
based inquiry from Osborne.

        Even though we must look to the respective elements, we
stress that this inquiry must be conducted in a flexible and open-
ended fashion. After all:

       Numerous sections of the sentencing guidelines
       direct the court to apply the offense level of the
       federal offense most “analogous” to a particular
       unlawful activity; it would be unreasonable to
       read into every one of these sections the
       requirement that, in order to apply the analogous
       offense guideline, the sentencing court must
       effectively retry the defendant for an otherwise
       unrelated offense. “[A]nalogy does not mean
       identity. It implies difference.” Sturm v. Ulrich,
       10 F.2d 9, 11 (8th Cir. 1925).

United States v. Langley, 919 F.2d 926, 930-31 & n.8 (5th Cir.
1990) (citing inter alia § 2X5.1). In turn, the Tenth Circuit
explained that “the court first had to ask what analogous
provisions were within the ballpark; it then had to ask which
represented the best fit.” Rakes, 510 F.3d at 1287. “We
generally compare the elements of the defendant’s crime to the
elements of federal offenses already covered by specific
Guidelines sections to ascertain which plausible analogies exist
for sentencing.” Id. at 1288 (citing Nichols, 169 F.3d at 1270).
In Allard (decided on the same day as Osborne), the Eighth
Circuit similarly observed that, “by definition, analogous
guidelines do not and need not perfectly match the defendant’s
crime.” Allard, 164 F.3d at 1149 (citing United States v. Terry,




                               20
86 F.3d 353, 358 (4th Cir. 1996)). While the inquiry may still
be “bounded by the elements of the offense of conviction”
(John’s Brief at 23), a perfect match of elements is not necessary
(or even expected). Instead, the proffered guideline need only
be within the same proverbial “ballpark” as the offense of
conviction.

       This “ballpark” or “plausible analogy” notion actually
makes a lot of sense in the ACA context. It is undisputed that
“assimilated crimes, by definition, have no perfect matches
among federal offenses”—otherwise they would not be
assimilated under the terms of the ACA itself. (Appellant’s
Brief at 32 (citing Lewis v. United States, 523 U.S. 155, 164-72
(1988)).) The Background Note to § 2X5.1 explains that many
offenses, particularly “assimilative offenses,” are not listed in
the Statutory Index or in any of the lists of statutory provisions
that follow each guideline—“Nonetheless, the specific
guidelines that have been promulgated cover the type of
criminal behavior that most such offenses proscribe.” § 2X5.1
cmt. background. The Sentencing Commission thereby
contemplates that most assimilated offenses will actually have a
“sufficiently analogous” offense guideline. In addition, this
comment “suggests that the most analogous guideline is the one
that covers the ‘type of criminal behavior’ of which the
defendant was convicted.” Calbat, 266 F.3d at 363.

        Accordingly, we now consider whether there is a
“sufficiently analogous” offense guideline to Defendants’
offenses of conviction. We begin by setting forth the assault
(and aggravated assault) guidelines and the related federal
offenses. The Court then turns to the state statutory provisions
at issue here and (in particular) the jury instructions addressing




                               21
the elements of the assimilated New Jersey offense of
endangering the welfare of a child. Having done so, we
compare the respective elements. In the end, we conclude that
Defendants’ offenses of conviction, the assault guideline, and
the federal offense of simple assault are within the same
proverbial “ballpark.”

       The “Assault” guideline, U.S.S.G. § 2A2.3, “applies to
misdemeanor assault and battery and to any felonious assault not
covered by § 2A2.2 (Aggravated Assault).” § 2A2.2 cmt.
background. The commentary to § 2A2.2, in turn, defines
“Aggravated assault” as “a felonious assault that involved (A) a
dangerous weapon with intent to cause bodily injury (i.e., not
merely to frighten) with that weapon; (B) serious bodily injury;
(C) strangling, suffocating, or attempting to strangle or
suffocate; or (D) an intent to commit another felony.” § 2A2.2
cmt. n.1. “This [aggravated assault] guideline covers felonious
assaults that are more serious than other assaults because of the
presence of an aggravating factor, i.e., serious bodily injury; the
involvement of a dangerous weapon with intent to cause bodily
injury; strangling, suffocating, or attempting to strangle or
suffocate; or the intent to commit another felony.” § 2A2.2 cmt.
background.

        18 U.S.C. § 113 prohibits “[a]ssaults within the special
maritime and territorial jurisdiction.” Defendants here were
charged with (and judgments of acquittal were granted on)
assault under § 113(a)(3) (“Assault with a dangerous weapon,
with intent to do bodily harm”) and § 113(a)(6) (“Assault
resulting in serious bodily injury”). However, this federal
provision sets forth additional assault offenses. For instance,
“Assault by striking, beating, or wounding,” is punishable by a




                                22
fine or imprisonment for not more than six months (or, pursuant
to a 2013 amendment, for not more than one year). § 113(a)(4);
see also Pub. L. No. 113-4, § 906, 104 Stat. 478 (2013).
Pursuant to § 113(a)(5), “[w]hoever, within the special maritime
and territorial jurisdiction of the United States, is guilty of an
assault shall be punished as follows: . . . . (5) Simple assault, by
a fine under this title or imprisonment for not more than six
months, or both, or, if the victim of the assault is an individual
who has not attained the age of 16 years, by fine under this title
or imprisonment for not more than 1 year, or both.”

       The Statutory Index lists more than forty different
statutory sections for these two offense guidelines. See
U.S.S.G. App’x A. It specifically lists § 2A2.3 for “18 U.S.C. §
113(a)(5) (Class A misdemeanor provisions only).” Id. In other
words, the assault guideline applies where the victim is under
the age of sixteen—thereby triggering either a fine or
imprisonment for not more than one year (or both). See, e.g., 18
U.S.C. § 3559(a)(6) (specifying that Class A misdemeanor is
any offense for which maximum term of imprisonment is one
year or less but more than six months); U.S.S.G. § 2X5.2 cmt.
n.1 (“Do not apply this guideline to a Class A misdemeanor that
has been specifically referenced in Appendix A to another
Chapter Two guideline.”).

       Turning to the New Jersey statutory scheme, the District
Court aptly observed that “we are dealing with a less than clear
statute” (A6688), which “is very unsatisfactory . . . really a
morass” (A6580). Specifically, N.J. Stat. Ann. § 2C:24-4a
(“Endangering welfare of children”) incorporates definitions of
basic concepts like abuse and neglect from various provisions of
Title 9 of the New Jersey Statutes Annotated (“Children—




                                23
Juvenile and Domestic Relations Courts”). See, e.g., N.J. Stat.
Ann. §§ 9:6-1 (“Abuse, abandonment, cruelty and neglect of
child; what constitutes”), 9:6-3 (“Cruelty and neglect of
children; crime of fourth degree; remedies”), 9:6-8.21
(“Definitions”); State v. N.I., 793 A.2d 760, 770 (N.J. Super. Ct.
App. Div. 2002) (“The imprecision of the Title 9 definitions
incorporated into N.J.S.A. 2C:24-4a, which caused the
[Criminal Law Revision] Commission to be ‘not happy’ and to
recommend the statute only “[w]ith hesitancy,” has come home
to roost in this case. It would, of course, be best if N.J.S.A.
2C:24-4a was self-contained with its own appropriate and
precise definitions.” (emphasis omitted)). Furthermore, it
appears that the same conduct may be prosecuted under §
2C:24-4a as a crime of the second degree (which happened here)
or as a fourth degree crime under N.J. Stat. Ann. § 9:6-3. See,
e.g., State v. D.A.V., 823 A.2d 34, 34 (N.J. 2003) (Albin, J.,
concurring) (“[T]he same conduct is proscribed in the same
language; however, when prosecuted pursuant to N.J.S.A.
2C:24-4, a defendant is exposed to a five- to ten-year state
prison term, and when prosecuted pursuant to N.J.S.A. 9:6-3, a
defendant is exposed only to an eighteen-month prison term. In
that respect, it appears that those provisions are unique in the
New Jersey Statutes Annotated.” (emphasis omitted)).

       Under these circumstances, it is understandable the
parties (especially Defendants) focus on the District Court’s
(rather extensive) jury instructions.

       Addressing Count 1 (the conspiracy charge) of the
indictment, the District Court reviewed the elements of the child
endangerment offense:




                               24
        The New Jersey statutes upon which
endangering the welfare of a child are based are
Sections 2C:24-4a, 9:6-1 and 9:6-3 of the New
Jersey Statutes Annotated. Section 2C:24-4a and
Section 9:6-3 criminalize the act of endangering
the welfare of a child, and Section 9:6-1 provides
definitions of what constitutes abuse,
abandonment, cruelty and neglect of a child.

       At the outset I will read the statutes to you
and then I will explain how you must apply the
statutes to the facts of this case by identifying the
specific elements that the government must prove
beyond a reasonable doubt.

       Section 2C:24-4a reads, in pertinent part:

   Any person having a legal duty for the care
   of a child or who has assumed
   responsibility for the care of a child who
   causes the child harm that would make the
   child an abused or neglected child . . . is
   guilty of a crime.

       Section 9:6-3 reads, in pertinent part:

   Any parent, guardian or person having the
   care, custody or control of any child who
   shall . . . be cruel to or neglectful of such
   child. . . shall be deemed to be guilty of a
   crime . . . .




                         25
            Turning to the elements, to find Carolyn
      Jackson and John E. Jackson guilty of
      endangering the welfare of a child, the
      government must prove the following elements
      beyond a reasonable doubt:

          1. That [Joshua, J, or C] was a child;

          2. That the defendant knowingly caused
          the child harm that would make the child
          neglected or knowingly committed an act
          of cruelty against the child;

          3. That the defendant knew that such
          conduct would cause the child harm or
          would inflict cruelty upon the child; and

          4. That the defendant had a legal duty for
          the care of the child or had assumed
          responsibility for the care of the child.

(A6008-A6009.) The District Court then explained each
element, defining the terms “child” (any person under the age
of eighteen at the time of the offense), “cruelty,” and
“neglect”:

             The second element that the government
      must prove beyond a reasonable doubt is that
      Carolyn Jackson and John E. Jackson knowingly
      caused the child harm that would make the child
      neglected or knowingly committed an act of
      cruelty against the child.




                             26
        Section 9:6-1 of the New Jersey Statutes
Annotated includes the following applicable
definitions of cruelty and neglect. As defined
under Section 9:6-1, the legal definition of abuse
does not apply in this case.

       Cruelty consists of any of the following
acts, by anyone having the custody or control of
the child:

   (a) Inflicting unnecessarily severe corporal
   punishment upon a child;

   (b) Inflicting upon a child unnecessary
   suffering or pain, either mental or
   physical;

   (c) Habitually tormenting, vexing or
   afflicting a child;

   (d) Any act of omission or commission
   whereby unnecessary pain and suffering,
   whether mental or physical, is caused or
   permitted to be inflicted on a child; or

   (e) Exposing a child to unnecessary
   hardship, fatigue or mental or physical
   strains that may tend to injure the health or
   physical well-being of such child.

Neglect consists in any of the following acts, by




                        27
       anyone having the custody or control of the child:

           (a) Failing to provide proper and sufficient
           food, clothing, maintenance . . . medical
           attendance or surgical treatment . . . or

           (b) Failure to do or permit to be done any
           act necessary for the child’s physical well-
           being.

              In New Jersey, the use of corporal
       punishment is not necessarily unlawful. The law
       prohibits the infliction of unnecessarily severe
       corporal punishment; however, as a general
       matter, a parent may inflict moderate correction
       such as is reasonable under the circumstances of
       the case. A parent may not inflict corporal
       punishment that is cruel, as I have just defined for
       you.

(A6010-A6011.) The District Court explored what is meant by
acting “knowingly” (e.g., “A person acts knowingly with respect
to the nature of his or her conduct or the attendant circumstances
if he or she is aware that the conduct is of that nature or that
such circumstances exist or the person is aware of a high
probability of their existence. A person acts knowingly with
respect to a result of the conduct if he or she is aware that it is
practically certain that the conduct will cause a result” (A6011)).
 It explained how Defendants could be found guilty for
omissions or the failure to act. The jury was told that a failure to
act or an omission can be the basis for criminal liability if the
government proves beyond a reasonable doubt that the




                                28
defendant had a legal duty to act and failed or omitted to
perform that legal duty with knowledge that this failure was
practically certain to cause harm. Additionally, the District
Court instructed the jury that the government must prove beyond
a reasonable doubt that each defendant had a legal duty, or
assumed responsibility, for the care of Joshua, J, or C. Noting
that these concepts encompass adoptive and foster parents, the
District Court stated that “[a] person who has assumed
responsibility for the care of the child includes any person who
assumes a general and ongoing responsibility for the child and
who establishes a continuing or regular supervisory or caretaker
relationship with the child.” (A6012.)

       The District Court, after summarizing the factual
allegations for each substantive count (Counts 2 through 13),
expressly incorporated its Count 1 instructions in each count.
For the first substantive charge (Count 2), the written
instructions provided a little more detail regarding the requisite
elements:

              I have previously instructed you regarding
       the Assimilative Crimes Act and Endangering the
       Welfare of a Child. There are two elements that
       the government must prove in a violation of the
       Assimilative Crimes Act:

           1. First, that the defendants endangered
           the welfare of a child; and

           2. Second, that the offense occurred
           within the special maritime and territorial
           jurisdiction of the United States.




                               29
             Additionally, to prove a violation of
       endangering the welfare of a child in violation of
       New Jersey law, the government must prove:

           1. That [Joshua] was a child.

           2. That the defendant knowingly caused
           the child harm that would make the child
           neglected or a child upon whom cruelty
           has been inflicted;

           3. That the defendant knew that such
           conduct would cause the child harm or
           would inflict cruelty upon the child; and

           4. That the defendant had a legal duty for
           the care of the child or had assumed
           responsibility for the care of the child.

               Because I already gave you detailed
       instructions regarding this offense in Count One, I
       will not repeat them. The same instructions apply
       to this count of the Superseding Indictment.

(A6019-A6020.)

        The jury was also given a written “Good Faith Defense”
instruction, which stated, among other things that, “[i]f you find
that Carolyn Jackson and John E. Jackson acted in ‘good faith,’
as that term is defined below, that would be a complete defense
to this charge, because good faith on the part of Carolyn Jackson




                               30
or John E. Jackson would be inconsistent with his or her acting
knowingly.” (A6035.) According to the District Court:

               A defendant acts in “good faith” when he
       or she did not know that his or her acts or
       omissions were practically certain to cause harm
       to a child, even though that knowledge turns out
       to be inaccurate or incorrect. Thus, in this case if
       Carolyn Jackson or John E. Jackson made an
       honest mistake or had an honest misunderstanding
       about whether his or her acts or omissions were
       practically certain to cause harm to a child then he
       or she did not act knowingly. A belief need not
       be objectively reasonable to be held in good faith;
       nevertheless, you may consider whether Carolyn
       Jackson or John E. Jackson’s stated belief that his
       or her acts or omissions were not practically
       certain to cause harm to a child was reasonable as
       a factor in deciding whether the belief was
       honestly or genuinely held.

(Id.) Defendants did not have the burden of proving good faith.
 The written instructions summarized the defenses offered by
Carolyn and John: (1) the conduct was done in good faith and
not knowing that Defendants’ acts or omissions were practically
certain to cause Joshua, J, or C harm (i.e., they did not
knowingly harm the three children): (2) they merely acted
negligently or accidentally or otherwise failed to act through
ignorance or mistake; (3) they did not inflict unnecessarily
severe corporal punishment; and (4) Defendants did not enter
into a criminal conspiracy to endanger the welfare of Joshua, J,
or C.




                               31
        The written instructions for Counts 2, 4, 7, 8, 9, 10, 11,
and 13 stated that Defendants allegedly caused harm to the
respective child, “and made [him or her] a neglected child, and a
child upon whom cruelty has been inflicted, as I have defined
for you previously, in violation of Title 18, United States Code,
Sections 13 and 2, and N.J.S.A. Section 2C:24-4a.” (A6019,
A6022, A6025-A6026, A6027, A6028-A6029, A6031.) For
Counts 3, 5, 6, 9, and 12, the District Court’s instructions did not
mention the concept of neglect. Instead, the District Court
referenced allegations that Defendants caused harm to the
respective child and made him or her “a child upon whom
cruelty has been inflicted, as I have defined for you previously,
in violation of Title 18, United States Code, Sections 13 and 2,
and N.J.S.A. Section 2C:24-4a.” (A6021, A6023-A6024,
A6027, A6030.) In its oral instructions, the District Court stated
the following:

               For Counts Two, Four, Seven, Eight, Ten,
       Eleven, and Thirteen, you may find a defendant
       guilty of endangering the welfare of a child based
       on either neglect or cruelty, but all twelve of you
       must unanimously find beyond a reasonable doubt
       that defendant knowingly caused harm to a child
       by either neglecting a child, as I have defined
       previously, or by inflicting cruelty upon a child, as
       I have defined it previously, or both. The
       government, however, does not have to prove
       both contentions for those Counts Two, Four,
       Seven, Eight, Ten, Eleven and Thirteen, and you
       do not have to unanimously agree that the
       defendant knowingly caused harm by neglecting a




                                32
       child and inflicting cruelty upon a child for those
       counts.

(A5901.)

        We acknowledge that there are some differences between
the elements of Defendants’ offenses of conviction, on the one
hand, and the assault guideline and the various federal offenses
implicated by this guideline (especially the offense of simple
assault), on the other hand. Specifically, the expansive elements
of child endangerment encompass a wide range of actions—and
inaction. For instance, the jury was told that cruelty consists of
not only unnecessarily severe corporal punishment and
unnecessary physical suffering or pain but also unnecessary
mental suffering or pain as well as habitual tormenting, vexing,
or afflicting. Even the government “argued there was no
sufficiently analogous offense Guideline for the crimes of
omission.” (Appellant’s Brief at 25.) The government asserts
that, while the jury could find Defendants guilty on the omission
charges because they either inflicted cruelty or neglected the
child, the jury was instructed that, to find them guilty on the
purported crimes of commission (with the exception of Count
10), it had to find that they inflicted cruelty. We observe that
the jury instructions for Counts 2, 4, 7, 8, 9, 10, 11, and 13,
specifically referred to both neglect and cruelty, and the District
Court explained that the jury could find Defendants guilty on
these charges based on a finding of either neglect or cruelty. In
contrast, the instructions for Counts 3, 5, 6, 9, and 12
exclusively referenced the concept of cruelty. Nevertheless, the
District Court also defined “cruelty” as including “[a]ny act of
omission . . . whereby unnecessary pain and suffering, whether
mental or physical, is caused or permitted to be inflicted on a




                                33
child” and “[e]xposing a child to unnecessary hardship, fatigue
or mental or physical strains that may tend to injure the health or
physical well-being of such child.” (A6010.)

        Yet the jury, at least with respect to the cruelty charges,
still had to find that the government established beyond a
reasonable doubt that Defendants “knowingly committed an act
of cruelty against the child.” (A6009.) If it is fair to say that the
New Jersey offense at issue here incorporates a number of
expansive components, the same could be said with respect to
the federal assault scheme. The federal simple assault provision
encompasses common law battery—the unlawful application of
force to the person of another, including offensive touching.
See, e.g., United States v. Delis, 558 F.3d 177, 177-84 (2d Cir.
2009). It also includes common law assault, defined as an
attempted battery or the deliberate infliction upon another of the
reasonable fear of physical injury. Id. In addition, the jury
instructions did not require the jury to find the degree of harm
suffered by the children. The assault guideline as well as the
federal offense of simple assault, in turn, do not mandate proof
of any sort of bodily injury or even actual physical contact.6 As

       6
         While the government noted below that “certain things,
such as degree of harm or danger are historically elements of
assault, they are not elements of the crimes for which these
defendants were convicted” (A6460), such “things” are not
elements of simple assault. We further observe that Carolyn’s
defense counsel indicated that the federal assault counts were
redundant because “there’s already a charge of neglect by
administering salt or sodium-laden substances while
withholding water.” (A5377.) At a presentencing hearing
tentatively addressing, inter alia, how to handle various issues




                                 34
Carolyn explains, assault “requires nothing more than . . .
placing of the victim in reasonable apprehension of physical
harm,” and “[n]o injury is required.” (Carolyn’s Brief at 28.)
“When the victim of an assault is under 16 years old, an assault
is punishable by imprisonment for up to one year.” (Id. (citing §
113(a)(5)).) We further note that the jury generally rejected
Defendants’ “Good Faith Defense,” determining instead that
they did not make “an honest mistake or had an honest
misunderstanding about whether his or her acts or omissions
were practically certain to cause harm to a child.” (A6035.)

       In turn, it is only to be expected that the offense of
conviction may include more expansive elements than the
federal offense or additional elements missing from the federal
counterpart. After all, “‘analogy does not mean identity. It
implies difference.’” Langley, 919 F.2d at 931 (quoting Sturm,
10 F.2d at 11); see also, e.g., Rakes, 510 F.3d at 1287 (stating
that court first had to ask what analogous provisions were within
“the ballpark”); Allard, 164 F.3d at 1149 (“[B]y definition,
analogous guidelines do not and need not perfectly match the
defendant’s crime.” (citing Terry, 86 F.3d at 358)). Carolyn
points out that, when corporal punishment by a parent is the
basis of a child endangerment charge, the prosecution must
prove that the punishment was unnecessarily severe or caused


identified in a letter from Carolyn’s attorney (on behalf of both
Defendants), Carolyn’s attorney took issue with the PSR’s
identification of “aggravated assault” as “the analogous
offense.” (A6083.) “We think that’s wrong. Analogous
offense is what they call a minor assault. A different guideline.
We think a matter of law and that could be briefed easily. And
if we are right, it eliminates certain enhancements.” (Id.)




                               35
unnecessary pain. According to her, “[t]here is no such
requirement under the federal assault statute which does not
address corporal punishment employed by parents.” (Carolyn’s
Brief at 34.) She further observes that, unlike the federal
scheme, the New Jersey provision requires that the defendant
either have a legal duty for the care of the child or have assumed
responsibility for the child. Yet a jury finding that a defendant,
for instance, had assumed responsibility for a child and then
inflicted unnecessarily severe corporal punishment on this child
by (to give two examples offered by Carolyn herself) “wash[ing]
her child’s mouth out with soap” or “forcing the ingestion of hot
sauce” (id. at 35 & n.32 (citations omitted)), would necessarily
(if implicitly) find that the defendant thereby committed simple
assault, i.e., an offensive touching. In fact, Carolyn essentially
admits this overlap when she claims that “‘parents commit this
[assault] offense every day of the week in every state in the
union.”7 (Carolyn’s Brief at 28.)

       7
         In Cothran, this Court found that a particular offense
guideline was more analogous than another offense guideline on
the grounds that, inter alia, the other guideline’s base offense
level lacked an element of the offense of conviction.
Specifically, we observed that U.S.S.G. § 2A6.1 (Threatening or
Harassing Communications) constituted the “most analogous”
offense guideline because “there is a scienter element present in
the base offense level for § 2A6.1 that is not present in the base
offense level of § 2K1.5 [(Possessing Dangerous Weapons or
Materials While Boarding or Abroad an Aircraft)].” Cothran,
286 F.3d at 178. Accordingly, “[t]o most accurately analogize
Cothran’s act under § 2K1.5, we would therefore have to
increase his base offense level to 24 because he knowingly
conveyed the false threat.” Id. As the District Court noted in




                               36
        Defendants and the District Court rely on a Fifth Circuit
non-precedential decision: United States v. Loften, 465 F.
App’x 294 (5th Cir. 2010) (per curiam). In this case, the
defendant was convicted under the ACA for violating a Texas
criminal provision by causing injury to a child. Id. at 295. In
addition to claiming that the ACA did not incorporate this state
offense because the federal simple assault provision governed
his conduct, the defendant argued that, among other things, the
district court erred by failing to apply the “most analogous”
offense guideline, i.e., the assault guideline. Id. He did not
raise these arguments below, and the Fifth Circuit concluded
that he failed to satisfy the plain error standard of review:

       However, the district court was obligated to apply
       the Sentencing Guidelines in Loften’s case and
       erred by failing to consider whether an analogous
       Guideline existed that could be used in
       determining Loften’s sentencing range. See
       [Calbat, 266 F.3d at 362]. That error did not
       affect Loften’s substantial rights. A review of the
       applicable statutes reveals no analogous
       Guideline.


this case, certain enhancements under the assault and aggravated
assault guidelines (“the abuse of trust, the vulnerable victim, the
obstruction of justice”) would appear to apply “to every child
endangerment charge.” (A6576.) However, we addressed the
issue of whether § 2K1.5 or § 2A6.1 constituted the “most
analogous” offense guideline—and not whether § 2K1.5
satisfied the initial “sufficiently analogous” offense guideline
requirement.




                                37
Id. at 295. The government argued in Loften that, under the
applicable “elements-based” approach, the elements of the
federal assault offenses implicated by the assault guideline were
significantly different from the elements of the offense of
conviction (i.e., § 113(a)(4) does not require that the victim be a
child under the age of fourteen, the federal simple assault
provision does not require that the assault cause bodily injury (a
key element of the Texas offense), and § 113(a)(7) only
punishes assaults that result in substantial bodily injury to a
child under the age of sixteen). As John puts it, “[i]t is
unsettling that the government calls the position it took in
Loften ‘mistaken,’ when it took that position to secure a more
severe sentence for the defendant, but now takes precisely the
opposite position here, in an effort to secure a draconian
guideline range and sentence.” (John’s Brief at 28-29.)

       Nevertheless, we do not place much weight on a non-
precedential ruling from another circuit concluding, without any
real discussion, that the district court’s failure to consider
whether there was an analogous offense guideline did not affect
the defendant’s substantial rights because a review of the
applicable statutes supposedly revealed no such guidelines.
Defendants point to nothing binding the government in this
case—a case implicating assimilated New Jersey law in which
the Solicitor General granted personal approval to appeal—to
another United States Attorney’s Office’s position with respect
to a conviction under assimilated Texas law. We further note
that the Texas statutory provision addressed in Loften differs
from the New Jersey offense at issue here. Specifically, the




                                38
Texas provision actually requires proof of bodily injury.8

       The government argues that the District Court’s various
reasons for rejecting the “assault Guidelines” do not withstand
scrutiny. “For example, the Court protested that: the jury was

       8
          In addition, we observe that the aggravated assault
guideline was applied to a conviction under this Texas bodily
injury provision in a precedential Fifth Circuit opinion. United
States v. Bell, 993 F.2d 427, 430 (5th Cir. 1993) (“In applying
section 2A2.2, the district court relied on a finding that Bell
injured his victim with intent to commit another felony—the
sexual assault. Relying on his claim that insufficient evidence
supported the aggravated sexual assault conviction, Bell asserts
that the district court should have sentenced him under U.S.S.G.
§ 2A2.3 on the second count. Because we find Bell’s conviction
under 18 U.S.C. § 2241(c) fully supported by the record, this
assignment of error necessarily founders.” (footnote omitted)).
Finally, this non-precedential Fifth Circuit ruling must be
weighed against other non-precedential dispositions applying the
aggravated assault guideline to various assimilated abuse
convictions. See United States v. Bailey, 169 F. App’x 815,
823-24 (5th Cir. 2006) (finding no error in district court’s use of
aggravated assault guideline as “most analogous” guideline
offense for conviction for cruelty to juvenile); United States v.
Truax, 69 F. App’x 219, 220-21 (6th Cir. June 6, 2003) (district
court applied aggravated assault guideline to conviction for first
degree criminal abuse of child); Centner, 116 F.3d 473, at *3
(“As we concluded above, U.S.S.G. §§ 2X2.1 and 2A2.2 are
sufficiently analogous to warrant their application to Centner’s
offense [of knowingly and willfully causing children be in place
where they could be abused].” (footnote omitted)).




                                39
not asked to make the findings contained in the assault
Guidelines; it would not be ‘justice’ to allow the Court to make
those findings under the lower [preponderance of the evidence]
standard of proof that governs all federal sentencings; and it
would be unfair to allow the Government to charge one statute
and seek punishment for another.” (Appellant’s Brief at 37-38
(citing A6468-A6472, A6477, A6484, A6491, A6558, A6573-
A6578, A6584-A6590, A6703).) Carolyn offers an extensive
explanation for why the use of the Guidelines in this case would
purportedly require impermissible judicial fact-finding. She
insists that the sentencing court “cannot find facts which are
elements of the crime because the Fifth and Sixth Amendment
give individuals ‘a right to demand that each and every element
of the alleged crime be submitted to a jury and proved beyond a
reasonable doubt before sentence is imposed.’” (Carolyn’s Brief
at 37 (quoting United States v. Grier, 475 F.3d 556, 562 (3d Cir.
2007) (en banc)).) While the sentencing court could decide
whether the offense involved, for example, an abuse of trust
because such matters have not traditionally been considered
elements of a crime, it purportedly cannot find facts that have
traditionally been seen as elements of assault offenses, such as
the severity of an injury or whether a dangerous weapon was
used. “Applying that reasoning to this case, the analogous
offense cannot be one for which the jury has not found a
determinative fact. The defendant cannot be tried for a charge
for which no significant injury is required and then be
sentenced as if a finding of such harm had been made. . . . A
defendant cannot be tried for one crime and sentenced for
another.” (Id. at 39 (citing United States v. Lewis, 802 F.3d
449, 454-55 (3d Cir. 2015)). According to Carolyn (and the
District Court itself), it was the government’s own conduct in
this case that precludes the application of the Guidelines: “The




                               40
government rejected a jury charge that would define an abused
or neglected child as suffering the degree of harm that its
arguing I should say happened and that the child indeed did
suffer. And instead, asking me to make that kind of finding, as
well as asking me to make that finding on a lower standard of
proof. That is tough to swallow.”9 (A6576.)

       9
         The parties had a disagreement below regarding the
degree of harm needed to sustain a conviction for endangering
the welfare of a child under § 2C:24-4a. Carolyn sought an
instruction incorporating “the definition of ‘abused or neglected
child’ contained in N.J.S.A. § 9:6-8.21 or, alternatively, the
language approved in [a 2002 Appellate Division ruling].”
(Carolyn’s Brief at 18-19 (citing State v. T.C., 789 A.2d 173,
186 (N.J. Super. Ct. App. Div. 2002) (“Abused or neglect child
means a child . . . whose parent or guardian . . . inflicts . . .
physical injury . . . which causes or creates a substantial risk of
protracted impairment of physical or emotional health.”)).)
While the government opposed this proposal, “to the extent that
the Court is concerned that at sentencing it would be lacking
information sufficient to understand the jury’s conclusions about
the severity of this offense, the government is willing to have
the Court charge a bifurcated instruction [on degree of harm] in
verdict form, where the jury is instructed after they’ve reached
their verdicts on the initial instructions.” (A5460, see also
A5467 (“But, you know, we are comfortable as an alternative
bifurcated verdict, putting before the jury [8.21].”) Carolyn’s
attorney stated that “as an alternative we would be comfortable
instructing everything and giving the lesser included offense, not
the bifurcation the government is asking for, but a lesser
included offense.” (A5469.)




                                41
         However, Defendants were tried, convicted, and should
be sentenced for child endangerment (and conspiracy to commit
child endangerment)—not for assault. It would have been
inappropriate for the District Court to charge the jury on
offenses that were not before it. It is § 2X5.1 that then requires
the sentencing court to consider, whenever the offense of
conviction is a felony for which no offense guideline has been
promulgated, whether there are any “sufficiently analogous”
offense guidelines, and, if so, apply the guideline that is “most
analogous” to the crime of conviction. No fact-finding is
required to select the offense guideline because we have
determined that the “sufficiently analogous” guideline inquiry
merely implicates a comparison of legal elements—a question of
law reviewed under a plenary standard of review. In turn, “by
definition, analogous guidelines do not and need not perfectly
match the defendant’s crime.” Allard, 164 F.3d at 1149 (citing
Terry, 86 F.3d at 358); see also, e.g., Rakes, 510 F.3d at 1287
(noting that court first had to ask what provisions were within
ballpark); Langley, 919 F.2d at 931 (observing that analogy
implies difference). Defendants, for their part, do not cite to any
case law calling into question the constitutionality of § 2X5.1
itself, and a district court cannot refuse to apply the Guidelines


       The District Court ultimately refused to ask the jury to
determine the extent of any injuries, while indicating that its
decision on this point could have an effect at sentencing: “If the
government prevails, in terms of not adding this definition of
substantial harm to the endangerment that’s charged then we
may have an issue coming up, should there be a conviction, as to
the extent of culpability, but the government will have
culpability.” (A5475.)




                                42
and calculate an advisory sentencing range because of its
disagreement with otherwise applicable Guidelines. United
States v. Napolitan, 762 F.3d 297, 312-313 (3d Cir. 2014);
United States v. Gonzalez, 462 F.3d 754, 755 (7th Cir. 2006).
In fact, the assault guideline would apply even if the jury had
actually found that Defendants were not guilty of simple assault
under the federal assault provision.10 See, e.g., Rakes, 510 F.3d
at 1290 (“Finally, Mr. Rakes contends that it was improper for
the district court to sentence him under guideline 2A6.1,
threatening or harassing communications, when the court
granted him an acquittal on mailing a threatening
communication, 18 U.S.C. § 876, which falls squarely within
guideline 2A6.1. We have, however, rejected this precise
argument in Nichols. . . . We affirmed Mr. Nichols’s sentence
under the first degree murder guideline, finding that it was the
most analogous, and his acquittal of murder did not affect our
‘most analogous guideline’ inquiry.” (citing Nichols, 169 F.3d at
1270-76)). It also bears repeating yet again that proof of
physical injury is not necessary to trigger application of the
assault guideline or for a simple assault conviction under federal
law (and that these provisions likewise do not require use of a
weapon).11

       10
           The District Court granted judgments of acquittal on
charges of assault with a dangerous weapon with intent to do
bodily harm and intentional assault resulting in serious bodily
injury. Defendants were not charged with simple assault under
the federal assault provision.
        11
           As we explain in Section III.B., we reject the notion
that it would be improper to engage in the sort of fact-finding
(under a preponderance of the evidence standard) that is
necessary to calculate the advisory Guidelines range once an




                               43
       The District Court (as well as Carolyn) have devoted a
great deal of attention to the nature of what is an admittedly
complicated state statutory scheme. Specifically, § 2C:24-4a
incorporates definitions from Title 9 of the New Jersey Statutes
Annotated (“Children—Juvenile and Domestic Relations
Courts”). According to Carolyn, Title 9—which has no federal
analog—implicates the state’s unique parens patrie
responsibility to protect children, the parent-child relationship,
and a parent’s right to use reasonable discipline (as opposed to
unnecessarily severe corporal punishment or unnecessary pain or
suffering). The District Court observed that Title 9 “is there to
protect the children” and to provide a constitutionally
appropriate mechanism for state family court judges to decide
whether these children should be taken from their parents,
whether they should eventually be reunified, and whether the
parental relationship should be terminated:

             And this is all very serious. And this is all
       procedurally taken care of. And this is all about
       what Title 9 does for the citizens of New Jersey.
       And why? Because of what the courts have in the
       State of New Jersey, not in the federal
       government, when is parens patrie jurisdiction.
       We don’t talk about it. No one’s briefed it for me.
        Maybe you all know I know it.

              But, I exercised parens patrie jurisdiction


offense guideline is identified. In Section III.C., we consider
whether application of the Guidelines would be consistent with
the ACA’s “like punishment” requirement.




                               44
as a family court judge and any of you who have
had a family court matter in the State of New
Jersey, including custody matters, private
litigation, divorce custody, adoption, you all know
that it’s the parens patrie jurisdiction of the family
part. And sometimes well, it’s part of Chancery.

       That gives the authority to the judge to
say what time you have to pick up your kids, to
say where your child lives, to be as intrusive as
one needs to be to protect the interests of the
children, to move property around, to seize
property if, in fact, somebody is trying to divest
because it could hurt the family’s interest, to
pass property through probate. All of this has to
do with the parens patrie jurisdiction if the
interests of a child are involved.

        So, is that federal? Does the federal
government have anything to say where that’s
concerned? I really do not believe it does. And
if somebody wants to make an argument, I will
give you time to do it. But, I’m saying it would
be a strained and difficult argument to make as
some of the enhancements were.

        Let the State of New Jersey have its
parens patrie jurisdiction. And let us honor and
respect it by seeing what we can do with this
statute that incorporates that parens patrie
jurisdiction in the rubric and the meaning of the
definitions and the state crime that we are trying




                         45
       to move because it arises out of the parens
       patrie jurisdiction.

(A6581-A6582.) In short, “this statute doesn’t really fit with
assault because it is balancing the rights of parents to discipline
their kids with the outcome of the execution of that right to
discipline their kids.” (A6583.) The District Court believed that
it simply could not fit a proverbial square peg into a round hole:

              So, this case is about parental discipline,
       the choices of discipline and the findings of the
       jury that the choices of discipline, as identified in
       the various counts, amounted to either acts of
       cruelty as defined to them in the jury charge, or
       neglect that caused harm.

               So, I don’t find an analogous federal
       statute. I don’t find that the federal government’s
       laws about assault cover that parental relationship
       or custodial or legal guardian or authority over
       relationship that infuses and is the basis and is the
       reason for the state’s statute. I find that this is
       fitting a square peg into a round hole.

(A6588.)

       “In Osborne, [the Eighth Circuit] commented that
attempting to fashion a sentence pursuant to USSG § 2X5.1 is
frequently similar to attempting to determine which round hole
best accommodates a square peg.” Allard, 164 F.3d at 1150.
Nevertheless, § 2X5.1 still requires the sentencing court to
undertake this admittedly difficult task, and the District Court




                                46
committed reversible error by failing to comply with this
obligation.

        In any event, we find that these various observations
about Title 9 and New Jersey’s parens patrie jurisdiction
ultimately have little, if any, real bearing on the outcome of the
“sufficiently analogous” guideline inquiry. As we have already
explained, it is reasonable to expect that the offense of
conviction may include an additional element missing from, or
incorporate a more expansive element than, the federal offense.
Based on the jury instructions given in this case, a jury finding
that a defendant exceeded his or her parental rights by, for
example, inflicting unnecessarily severe corporal punishment
constituted an implicit finding that defendant thereby committed
simple assault. Furthermore, the District Court’s discussion of
Title 9 and New Jersey family court proceedings appeared rather
removed from the “elements-based” inquiry—an approach that
Defendants themselves ask us to adopt. By indicating that the
“federal government does [not] have anything to say” here
(A6582), the District Court also effectively called into question
whether the child endangerment offense was properly
assimilated under the ACA in the first place. However, it is
undisputed that the New Jersey Legislature, by enacting §
2C:24-4a, decided that any person having a legal duty for the
care of a child or who has assumed responsibility for the care of
a child who causes the child harm that would make the child an
abused or neglected child is guilty of a crime of the second
degree. In turn, the offenses at issue here—because they
occurred on a military installation under the special jurisdiction
of the federal government—were assimilated under the ACA.
Even though the state criminal provision implicates the state’s
interest in protecting children from harm while preserving the




                               47
parent-child relationship (and incorporates aspects of the state’s
“Children-Juvenile and Domestic Relations Courts” scheme),
this is still a criminal prosecution in federal court under an
assimilated state criminal statutory provision—and not, to give
just one example, an action before a state family judge to
terminate Defendants’ parental rights. In fact, a separate
Chancery Division proceeding was filed by the appropriate New
Jersey authorities, which has resulted in the termination of
Defendants’ parental rights vis-à-vis both J and C.12 See, e.g.,
C.J., 2014 WL 388131, at *39-*52.

       Finally, we believe that the existing case law indicates
that the assault guideline is “sufficiently analogous” to
Defendants’ offenses of conviction.

       12
           Title 9 also incorporates criminal provisions. See, e.g.,
§ 9:6-3 (“crime of fourth degree”). We further note that Title 9
does not merely apply to parents or legal guardians. Section
9:6-8.21a specifies that “[p]arent or guardian” includes, inter
alia, “a teacher, employee, or volunteer” of an institution who is
responsible for the child’s welfare, any other staff person
regardless of whether he or she is responsible for the care or
supervision of the child, and a teaching staff member or other
employee of a day school. In this case, the jury was instructed
that “[a] person who has assumed responsibility for the care of a
child includes any person who assumes a general and ongoing
responsibility for the care of the child and who establishes a
continuing or regular supervisory or caretaker relationship with
the child.” (A6012.) Section 2C:24-4a also provides that “any
other person” who engages in conduct or who causes harm as
described in this paragraph to the child is guilty of a crime of the
third degree.




                                48
        After all, the threshold “sufficiently analogous” guideline
inquiry is satisfied merely if the analogous provisions are, inter
alia, “within the ballpark,” Rakes, 510 F.3d at 1287, or “some
plausible analog[y]” exists between the elements of the
defendant’s crime and the elements of federal offenses covered
by the existing offense guideline, id. at 1288. The Sentencing
Commission also indicates that most assimilated offenses will
have a “sufficiently analogous” offense guideline. See § 2X5.1
cmt. background (“Nonetheless, the specific guidelines that have
been promulgated cover the type of criminal behavior that most
such offenses proscribe.”). Concluding that the ACA did not
assimilate a state first-degree murder child victim provision, the
Supreme Court reserved judgment on the question of whether
state child abuse statutes may be assimilated given the existence
of a federal assault statute: “And, without expressing any view
on the merits of lower court cases that have assimilated state
child abuse statutes despite the presence of a federal assault law,
§ 113, see, e.g., United States v. Brown, [608 F.2d 551, 553-54
(5th Cir. 1979)]; United States v. Fesler, 781 F.2d 384, 390-391
(C.A.5 1986), we note that the federal assault prohibition is less
comprehensive than the federal murder statute, and the relevant
statutory relationships are less direct than those at issue here.”
Lewis, 523 U.S. at 171-72.

       In a companion case to its Osborne decision, the Eighth
Circuit determined that the involuntary manslaughter guideline
was “sufficiently analogous” to the assimilated state offense of
vehicular battery—even though involuntary manslaughter
requires the death of the victim while the battery charge only
requires serious bodily injury. Allard, 164 F.3d at 1149.
Pointing out that analogous guidelines, by definition, do not and




                                49
need not perfectly match the defendant’s crime, the Allard court
“cannot say as a matter of law that the difference between death
and serious bodily injury makes involuntary manslaughter
insufficiently analogous to vehicular battery.” Id. (observing
that necessary line drawing in determining whether victim’s
injury is serious enough is better left to district court to decide as
part of “most analogous” guideline analysis); see also, e.g.,
Calbat, 266 F.3d at 363-64 (rejecting defendant’s argument that
involuntary manslaughter guideline was “most analogous”
offense guideline to offense of intoxication assault); Osborne,
164 F.3d at 440 (“As for Osborne’s argument that involuntary
manslaughter is more analogous to vehicular battery, we first
observe that death did not result in this case. More importantly,
we give due deference to the district court’s choice of the most
analogous guideline and cannot say the aggravated assault
guideline was inappropriately applied in this case.”). Yet, if a
homicide guideline could be considered to be “sufficiently
analogous” to an offense that does not even require proof of
death, we see no reason why the assault guideline should not
apply here.13

B.     Refusal to Find Facts

       13
          According to Carolyn, any error was harmless.
Nevertheless, Carolyn’s burden to establish harmless error is a
heavy one, and it is one that she clearly does not meet here. See,
e.g., United States v. Zabielski, 711 F.3d 381, 387 (3d Cir.
2013) (noting that burden is very difficult to satisfy absent clear
statement by district court that same sentence would have been
imposed); United States v. Wright, 642 F.3d 148, 154 n.6 (3d
Cir. 2011) (stating that error is not harmless unless alternative
sentence was product of three-step Booker sentencing process).




                                 50
       The District Court committed reversible error by refusing
to engage in the requisite fact-finding pursuant to the applicable
preponderance of the evidence standard.

        It is well established that “the constitutional rights to a
jury trial and proof beyond a reasonable doubt attach only to
facts that ‘constitut[e] the elements of a crime,’ which are those
facts that increase the maximum [or minimum] statutory
punishment to which the defendant is exposed.” United States
v. Smith, 751 F.3d 107, 117 (3d Cir. 2014) (quoting Grier, 475
F.3d at 562). In contrast, “facts that only enhance sentences
within the range allowed by the jury’s verdict (or guilty plea)
need not be charged in an indictment or proven beyond a
reasonable doubt.” United States v. Tidwell, 521 F.3d 236, 250
n.9 (3d Cir. 2008) (citing Grier); see also, e.g., Smith, 751 F.3d
at 117 (“Facts relevant to the application of various Guidelines
provisions, which are advisory only, do not implicate these
rights.” (citing Grier, 475 F.3d at 562)). As we have already
explained, Defendants were charged, convicted, and should be
sentenced for child endangerment (and conspiracy to commit
child endangerment). By finding Defendants guilty of crimes of
the second degree, the jury triggered a maximum sentence for
each count of conviction of ten years’ imprisonment (together
with a minimum term of imprisonment of five years). See N.J.
Stat. Ann. § 2C:43-6a(2). New Jersey law permits consecutive
sentencing, meaning that the absolute maximum term of
imprisonment at issue here is 120 years for Carolyn and 100
years for John. See, e.g. N.J. Stat. Ann. § 2C:44-5. Facts like
the severity of the injury or the use of a weapon do not affect the
maximum and minimum sentences established by statute. In
fact, neither the degree of harm suffered by the victim nor the




                                51
use of a weapon constitute an element of the offenses of
conviction—or the federal crime of simple assault. While
“Booker afforded judges broad discretion to enter appropriate
sentences in consideration of § 3553(a) factors,” it “is not within
the sentencing judge’s discretion to diverge from applying the
preponderance-of-the-evidence standard in the initial sentencing
calculation at step one [i.e., calculation of the advisory
Guidelines range.]” United States v. Ali, 508 F.3d 136, 155 (3d
Cir. 2007) (footnote omitted). Likewise, a sentencing court
cannot refuse to apply the Guidelines and calculate an advisory
sentencing range because of its disagreement with otherwise
applicable Guidelines. See, e.g., Napolitan, 762 F.3d at 312-13;
Gonzalez, 462 F.3d at 755.

        Having identified the offense guideline applicable to the
offense of conviction under the Guidelines, the sentencing court
must then “determine the applicable guideline range in
accordance with § 1B1.3 (Relevant Conduct).” U.S.S.G. §
1B1.2(b); see also, e.g., U.S.S.G. § 1B1.1(2) (directing court to
determine base offense level and apply any appropriate specific
offense characteristics, cross-references, and special instructions
contained in applicable offense guideline). As John explains,
“[i]f a guideline is applicable, the second step involves applying
enhancements and adjustments based on, inter alia, relevant
conduct.” (John’s Brief at 14 (citing § 1B1.2(b)).) In other
words, the court must “apply ‘any applicable specific offense
characteristics (under that guideline), and any other applicable
sentencing factors pursuant to the relevant conduct definition in
§ 1B1.3.’” (Id. at 16 (quoting U.S.S.G. § 1B1.2(b) cmt. n.2).)
Unlike the “offense of conviction,” “‘Relevant Conduct’
includes other, uncharged and related activities.” United States
v. Pressler, 256 F.3d 144, 157 n.7 (3d Cir. 2001). This includes




                                52
facts that might have formed the basis of uncharged offenses as
well as charges on which the defendant was acquitted. See, e.g.,
United States v. Ciavarella, 716 F.3d 705, 735-36 (3d Cir. 2013)
(“But ‘a jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the
acquitted charge so long as that conduct has been proved by a
preponderance of the evidence.’” (quoting United States v.
Watts, 519 U.S. 148, 157 (1997))); Grier, 475 F.3d at 568
(“[Facts relevant to the application of the Guidelines—whether
or not they constitute a separate offense] do not constitute
‘elements’ of a ‘crime’ under the rationale of Apprendi and do
not implicate the rights to a jury trial and proof beyond a
reasonable doubt.” (quoting Apprendi v. New Jersey, 530 U.S.
466, 490 (2000))). But see United States v. Berry, 553 F.3d 273,
281 n.6 (3d Cir. 2009) (questioning whether Watts is in tension
with Apprendi line of cases). In this case, the assault
guideline’s cross-reference directs the sentencing court to apply
the aggravated assault guideline “[i]f the conduct constituted
aggravated assault.” U.S.S.G. § 2A2.3(c). In turn, the
Guidelines set forth various enhancements for, inter alia, the
level of planning, the degree of injury, the victim’s vulnerability,
the use of dangerous weapons, the defendant’s abuse of trust,
and obstruction of justice. See U.S.S.G. §§ 2A2.2(b), 2A2.3(b),
3A1.1(b)(1), 3B1.3, 3C1.1.

       The District Court committed reversible error by refusing
to make the requisite findings of fact with respect to both the
advisory Guidelines calculation as well as the application of the
§ 3553(a) factors. Refusing to find aggravating facts under the
applicable preponderance standard, it repeatedly indicated that it
would not make any factual findings that were not necessarily
found by the jury, or “‘shown beyond a reasonable doubt”




                                53
(A6701; see also A6578, 6715). In particular, the District Court
(having determined that there is no “sufficiently analogous”
offense guideline) failed to make findings of fact relevant to the
various sentencing enhancements as well as the assault
guideline’s cross-reference to the offense guideline for
aggravated assault. John acknowledges that, if we conclude that
there is a “sufficiently analogous” offense guideline, we “should
remand the case to permit the [District Court] to calculate the
guidelines range.” (John’s Brief at 30.) Because we conclude
that the assault guideline constitutes a “sufficiently analogous”
offense guideline, the District Court must now make the
requisite findings of fact (under a preponderance of the evidence
standard) in order to calculate this range (which includes
deciding whether the aggravated assault guideline applies
pursuant to the cross-reference as well as applying any relevant
sentencing enhancements).

C.     The ACA, Sentencing Guidelines, and State Law

       We agree with the government that—while, “following
Booker, a sentencing court likely can consider what a state
defendant would receive if he had been prosecuted in state
court” (Appellant’s Brief at 52)—the District Court simply
went too far in this case by focusing on state sentencing
practices to the exclusion of basic federal sentencing
principles. Instead of acting as a federal court applying the
well-established federal sentencing scheme, the District Court
essentially acted as a state court applying the various intricate
aspects of New Jersey’s sentencing practices.

      18 U.S.C. § 13(a) subjects the defendant to “a like
punishment.” It is undisputed that state law thereby sets the




                               54
minimum and maximum punishment that may be imposed.
Defendants do not claim that the Guidelines-based sentences
sought by the government exceed this limitation.

        Carolyn discusses New Jersey sentencing principles at
some length. She contends that the District Court “recognized
that, in order to give effect to the fundamental principle of the
ACA that a crime under that statute is ‘punishable only in the
way and to the extent that it would have been punishable’ if
committed on non-federal property, it was necessary to consider
the actual time that the defendant will serve.” (Carolyn’s Brief
at 14-15 (quoting United States v. Press Publ’g Co., 219 U.S. 1,
10 (1911) (emphasis added)).) According to Carolyn, the
District Court appropriately recognized that application of the
Guidelines would not satisfy the ACA’s “like punishment”
requirement. According to the New Jersey Appellate Division,
“‘the basic sentencing issue is always the real time defendant
must serve, and we have always recognized that real time is the
realistic and practical measure of the punishment imposed.’”
State v. Cooper, 952 A.2d 1122, 1126 (N.J. Super. Ct. App. Div.
2008) (citation omitted). “The ‘real sentence’ is found in the
State Parole Board Eligibility Tables which provide ‘a fair and
practical indicator of the likely actual custodial time for those
defendants who get full credit for good time, work time, and
minimum custody time.’” (Carolyn’s Brief at 15 (footnote
omitted) (quoting Pressler & Veniero, Current N.J. Court Rules,
Comment R. 3:21-4[10] (Gann 2017)).) Carolyn explains that a
defendant sentenced to a five-year term of imprisonment under
New Jersey law would actually serve approximately 12 months
(while, if he or she was sentenced to the same term under federal




                               55
law, the defendant would serve approximately 53 months).14 In
addition, the state trial court may sentence a defendant to a term
appropriate to a crime one degree lower if it is clearly convinced
that the mitigating factors substantially outweigh the
aggravating factors and the interest of justice so demand (which
in this case would result in a term of between three and five
years). N.J. Stat. Ann. §§ 2C:43-6a(3), 2C:44-1f(2). Similarly,
there is a presumption of imprisonment for a person convicted
of a second degree offense, but it may be overcome when the
state sentencing judge finds imprisonment would constitute a
serious injustice overriding the need to deter others. N.J. Stat.
Ann. § 2C:44-1d. While acknowledging that a federal court
need not follow every last nuance of state sentencing practices,
Carolyn argues that Judge Hayden (a former state court judge)
properly attempted to replicate a “real time” sentence.

       However, Congress made it clear in 1990 that ACA
defendants “shall be sentenced in accordance” with § 3553 and
the Guidelines. See Pub. L. No. 101-647, § 1602, 104 Stat. 478
(1990). We have explained that “state law sets the minimum
and maximum punishment while the federal sentencing
guidelines should be used to determine the actual sentence

       14
          Likewise, Carolyn argues that a defendant sentenced
under New Jersey law to ten years’ imprisonment would have a
“real time” sentence of around 23 months. “Looked at another
way, the 19 ½ years [for Carolyn] sought by the government
exceeds the length of time a person would serve on a 70-year
sentence.” (Carolyn’s Brief at 59 (footnote omitted).) Carolyn
further claims that the maximum parole eligibility time for a
defendant sentenced to a seven-year term of imprisonment is
approximately 21 months.




                               56
within that range.” See, e.g., United States v. Queensborough,
227 F.3d 149, 160 (3d Cir. 2000) (citing United States v. Pierce,
75 F.3d 173, 176 (4th Cir. 1996); United States v. Marmolejo,
915 F.2d 981, 984 (5th Cir. 1990); United States v. Garcia, 893
F.2d 250, 254 (10th Cir. 1989)), abrogation on other grounds
recognized by United States v. Dahmen, 675 F.3d 244 (3d Cir.
2012). In addition, § 3553(a)(6) directs district courts to
consider the need to avoid unwarranted federal sentencing
disparities. See, e.g., United States v. Begin, 696 F.3d 405, 412-
14 (3d Cir. 2012). The ACA does not assimilate a state
sentencing policy or practice that conflicts with federal
sentencing policies. See, e.g., United States v. Coleman, 38
F.3d 856, 861 (7th Cir. 1994) (“Coleman argues that with good
time under Illinois law he would have had to serve a maximum
of 7 ½ years (1/2 of the maximum 15 year penalty allowed).
However, while the Assimilative Crimes Act states that
punishment should be ‘like’ that of the state punishment, the
federal government does not have to adopt the same provisions
for computing when a sentence is satisfied.” (citing United
States v. Norquay, 905 F.2d 1157, 1162 (8th Cir. 1990); United
States v. Vaughan, 682 F.2d 290, 294-95 (2d Cir. 1982)));
Norquay, 905 F.2d at 1163 (“We are similarly persuaded that
application of state law regarding good time credits and
consecutive versus concurrent sentencing to a federal offender
under the Major Crimes Act would be disruptive to the federal
prison system.”); United States v. Smith, 574 F.2d 988, 992 (9th
Cir. 1978) (rejecting district court’s application of three-year
minimum term under state law before prisoner could be eligible
for parole because ACA “does not further require adherence to
state policy with reference to parole eligibility,” prisoner is
federal prisoner subject to federal correctional policies, and it
would be disruptive to have two classes of prisoners subject to




                               57
different rules).15

       According to Carolyn, “[f]ederal parole policy is not
implicated here, and it is not contended that New Jersey parole
policy should be adopted by the federal prison system.”
(Carolyn’s Brief at 47.) But insofar as Carolyn and the District
Court have indicated that the concept of “real time”—i.e., the
parole eligibility date under state law—should control, this is
what in essence occurred here. After all, there is no real
difference between a sentencing court directing the Bureau of
Prisons to apply state parole policies and a court simply
adopting these policies from the outset by imposing a term of
imprisonment based on the putative date that the defendant
would be eligible for release if prosecuted, convicted, and
sentenced in the state court system.


       15
         Asserting that the ACA “represents a deliberate choice
to promote intrastate uniformity above interstate uniformity
when a defendant commits a crime, otherwise punishable by
state law, on federal land,” the Fifth Circuit determined that
Texas law requiring concurrent sentences must be honored.
United States v. Martinez, 274 F.3d 897, 908 (5th Cir. 2001)
(citing Garcia, 893 F.2d at 253-54). However, Martinez
addressed the maximum sentence allowed under state law (as
opposed to anything resembling New Jersey’s “real time”
concept). Id. at 909 (“Texas’s choice to limit the length of all
concurrent sentences deserves as much deference as does a
choice to set the statutory maximum for an individual crime.”
(footnote omitted)). We also note that the Eighth Circuit refused
to apply state law governing concurrent and consecutive
sentences. Norquay, 905 F.3d at 1163.




                               58
D.     Substantive Unreasonableness16

       Finally, we consider the substantive reasonableness of the
sentences imposed by the District Court. According to the
government, “no reasonable sentencing court would have
imposed such lenient sentences on parents who beat, starved,
and neglected their young and defenseless adopted children over
a five-year period, contributing to the death of one, almost
killing another twice, and causing permanent damage to the
survivors.” (Appellant’s Brief at 54 (emphasis omitted).) The
government may go too far in its characterization of Defendants’
conduct and the injuries they inflicted on their children. In
addition, we do not suggest that the District Court must sentence
Defendants to the terms of imprisonment sought by the
government (235 months for Carolyn and 188 months for John).
 Nevertheless, we do conclude that “no reasonable sentencing
court would have imposed [a sentence of 24 months’
imprisonment and three years of supervised release for Carolyn
and a sentence of two years of probation, a fine, and community
service for John] for the reasons the district court provided.”
Tomko, 562 F.3d at 568. Simply put, more than two years of
incarceration and probation is required to satisfy the purposes of
sentencing established by Congress.

       The third step of the three-step sentencing process
requires the district court to exercise its discretion by
considering the relevant § 3553(a) sentencing factors. See, e.g.,

       16
         Upon finding these procedural errors in the sentences,
Judge Fuentes would vacate and remand for resentencing
without reaching the substantive unreasonableness of the
sentences.




                               59
id. at 567. These factors are:

       (1) the nature and circumstances of the offense
       and the history and characteristics of the
       defendant;

       (2) the need for the sentence imposed—

          (A) to reflect the seriousness of the
          offense, to promote respect for the law,
          and to provide just punishment for the
          offense;

          (B) to afford adequate deterrence to
          criminal conduct;

          (C) to protect the public from further
          crimes of the defendant; and

          (D) to provide the defendant with needed
          educational or vocational training, medical
          care, or other correctional treatment in the
          most effective manner;

       (3) the kinds of sentences available;

       (4) the kinds of sentence and the sentencing range
       established for—

          (A) the applicable category of offense
          committed by the applicable category of
          defendant as set forth in the guidelines . . .




                                 60
          .;

       (5) any pertinent policy statement—

          (A) issued by the Sentencing Commission .
          . . .;

       (6) the need to avoid unwarranted sentence
       disparities among defendants with similar records
       who have been found guilty of similar conduct;
       and

       (7) the need to provide restitution to any victims
       of the offense.

§ 3553(a). Under this statutory provision, the court must impose
a sentence that is “sufficient, but not greater than necessary, to
comply with the purposes of [sentencing].” Id. “This
requirement is often referred to as ‘the parsimony provision,’
and the Supreme Court has referred to it as the ‘overarching
instruction’ of 18 U.S.C. § 3553(a).” United States v. Olhovsky,
562 F.3d 530, 548-49 (3d Cir. 2009) (quoting Kimbrough v.
United States, 552 U.S. 85, 101 (2007)). It is well established
that the sentencing judge occupies a “‘superior position to find
facts and judge their import under § 3553(a) in the individual
case,’” and “‘gain[ ] insights not conveyed by the record.’”
Tomko, 562 F.3d at 560-61 (quoting Gall v. United States, 552
U.S. 38, 51-52 (2007)). However, this does not make us a mere
rubber stamp. A sentence must still be reversed if “no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district
court provided.” Id. at 568. This standard is “not an exercise in




                               61
[appellate] self-abnegation.” Id. at 575.

        Our preferred course of action upon finding procedural
error is to remand the case for resentencing, without considering
the substantive reasonableness of the sentence imposed. See,
e.g., United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010).
 Nevertheless, “procedural problems may lead to substantive
problems, so there are times when a discussion of procedural
error will necessarily raise questions about the substantive
reasonableness of a sentence.” United States v. Levinson, 543
F.3d 190, 195 (3d Cir. 2008) (citing United States v. Goff, 501
F.3d 250, 256 (3d Cir. 2007)). This is one of those times.

        The government asserts that proper consideration of the
facts and the relevant Guidelines would have resulted in a
sentencing range for Defendants of 210 to 262 months
(according to the Probation Office) or 292 to 365 months (as
calculated by the government). See, e.g., § 3553(a)(4)(A)
(referring to sentencing range for “the applicable category of
offense committed by the applicable category of defendant as set
forth in the guidelines”). While the District Court never
undertook the proper Guidelines calculation, it appears
undisputed that the advisory range under the Guidelines would
have been substantially higher than the sentences that were
imposed here. In essence, probation for John and 24 months’
imprisonment for Carolyn represented enormous downward
variances, which require correspondingly robust explanations
for why such lenience was warranted. See, e.g., Gall, 552 U.S.
at 50 (“We find it uncontroversial that a major departure should
be supported by a more significant justification than a minor
one.”); Merced, 603 F.3d at 216 (“The extent of the explanation
we require [to allow us to conduct the substantive




                               62
reasonableness review] may turn on whether the court has varied
from the Guidelines range, and, if it has, on the magnitude of the
variance.”). The District Court, however, clearly did not
provide the requisite explanation for such lenient sentences.

         Characterizing Defendants’ conduct as misguided
corporal punishment and mistaken or bad parenting, the District
Court refused to hold Defendants’ responsible for the children’s
various injuries and medical conditions. Relying on the parties’
jury instruction dispute (addressed in Section III.A., supra), it
claimed that “[t]he government rejected a jury charge that would
define an abused or neglected child as suffering the degree of
harm that its arguing I should say happened and that the child
did suffer.” (A6576.) According to the District Court, this case
implicated “a very naked verdict sheet,” in which the jury failed
to indicate “what they were particularly offended by, how the
acts linked up with a particular medical condition of the
children.” (A6690.) “I have to cope with the fact, everybody
has to cope with the fact that the live doctors who touched these
children during the time that the children were in their care, up
to the time in May 2010, or actually I believe it was April 2010
the child was brought to the hospital, these doctors did not find
what the government is saying was going on, which is a
systematic torture resulting in terrible injuries to vulnerable
children.” (A6691.) The District Court wished that it knew
what the jury found, but all it had were findings that Defendants
committed acts of cruelty and neglect that caused harm: “I don’t
know the extent of harm. And I don’t know whether the jury
bought that all of these physical conditions that were explained
to the satisfaction of medical doctors at the time the children
were examined, up until April of 2010, I don’t know that the
jury found that they are the result of massive, horrible, criminal,




                                63
sadistic abuse as a result of a five-year conspiracy to do that.”
(A6700-A6701.)

       However, “a guilty verdict, not set aside, binds the
sentencing court to accept the facts necessarily implicit in the
verdict.” United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.
1996) (quoting United States v. Weston, 960 F.2d 212, 218 (1st
Cir. 1992). We agree with the government that the District
Court in this case effectively “substitut[ed] its view of the
evidence . . . for the jury’s verdict.” United States v. Bertling,
611 F.3d 477, 481 (8th Cir. 2004) (citing United States v.
Rivera, 411 F.3d 864, 866 (7th Cir. 2005)).

        The government admittedly does read too much into the
jury’s verdict. Specifically, the jury never explicitly found that
Defendants “‘torture[d]’ three young adopted children over a
five-year period.” (Appellant’s Brief at 1 (quoting A6360).)
The indictment did not charge Defendants with “torture,” and
the jury was never instructed that they had to find that
Defendants “tortured” the children. Given the expansive nature
of the child endangerment instructions as well as the allegations
against Defendants (involving numerous acts of abuse
committed over the course of a five-year conspiracy), we
recognize the difficulty in connecting each count with a specific
incident or a particular injury or condition.

       Nevertheless, the jury did find Defendants guilty of
conspiracy to endanger the welfare of a child. Carolyn was
found guilty on eleven counts of child endangerment while John
was convicted on nine such counts. The jury was instructed that
“cruelty” consists of either—(a) inflicting unnecessarily severe
corporal punishment, (b) inflicting upon a child unnecessary




                               64
suffering or pain, either mental or physical, or habitually
tormenting, vexing or afflicting a child, (c) any act of omission
or commission whereby unnecessary pain and suffering
(whether mental or physical) is caused or permitted to be
inflicted on a child; or (d) exposing a child to unnecessary
hardship, fatigue, or mental or physical strains that may tend to
injure the health or physical well-being of the child. The
District Court defined “neglect” as failing to provide proper and
sufficient food, clothing, maintenance, medical attendance, or
surgical treatment, or the failure to do or permit to be done any
act necessary for the child’s physical well-being. The
government also established beyond a reasonable doubt that
Defendants knew their conduct would cause the harm or would
inflict cruelty. The jury was even specifically instructed on both
the permissible use of corporal punishment and a “Good Faith
Defense”—and yet it still returned guilty verdicts on multiple
counts against Defendants.

        While the parties may contest causation, the children
clearly suffered various injuries and had a number of serious
medical conditions. Joshua had a life-threatening bile duct
perforation, a serious brain injury, a fractured skull, a fractured
right arm, a spinal problem, and a gangrenous finger that
required partial amputation. He also was admitted to the
hospital with an extensive case of scalded skin syndrome, a skin
condition that causes skin to peel off. J had bruises on her body,
and C’s body was covered with marks, scars, and lesions. C was
hospitalized in January 2010 with hypernatremia, i.e., high
sodium levels and dehydration. Normal sodium levels are
generally between 133 to 143, and 10 points above normal
levels is considered dangerous. C’s sodium level (181) was so
high that her doctor “was surprised she was still alive and




                                65
functioning in the emergency department.” (A922-A923.) She
was again hospitalized in April 2010 for the same condition.
This time her sodium level (195) was “[r]are for any living
person” (A572) and was “at the margins of what you can
survive” (A3405). Furthermore, evidence was introduced
indicating that C’s arm was fractured. The children, especially
Joshua and C, did not really grow (and even regressed) during
their time with Defendants. For example, Joshua weighed less
than he did at 11 months just three weeks before his third
birthday. He weighed, at the age of two years and 11 months,
“as much as a baby that is less than one year old.” (A4275.) At
the age of approximately one year and 10 months, C weighed
the same as the average 4 ½-month-old baby and less than she
had weighed at nine months. Following their removal from
Defendants’ custody, J and C grew quickly (with C doubling her
weight in several months).

       For each substantive count, the jury instructions reiterated
the factual allegations set forth in the indictment. The
instruction for Count 2, for example, stated the following:

       Count Two alleges that from in or about March
       2006 through on or about May 8, 2008, within the
       special maritime and territorial jurisdiction of the
       United States, at Picatinny Arsenal Installation, in
       Morris County, in the District of New Jersey, and
       elsewhere, the defendants, Carolyn Jackson and
       John E. Jackson, having a legal duty for the care
       of and having assumed responsibility for the care
       of Joshua Jackson, a/k/a “Joshua Kennedy, ” born
        May 13, 2005, knowingly caused harm to Joshua
       by withholding sufficient nourishment and food




                                66
       from him, and made Joshua a neglected child, and
       a child upon whom cruelty has been inflicted, as I
       have defined for you previously, in violation of
       Title 18, United States Code, Sections 13 and 2,
       and N.J.S.A. Section 2C:24-4a.

(A6019.) Likewise, the instruction for Count 7 stated that
Defendants knowingly caused harm to C by withholding
sufficient nourishment and food, and the instructions for Counts
4 and 8 repeated the allegations that Defendants knowingly
caused harm by withholding adequate water from J and C
(respectively). The Count 3, 6, and 12 instructions respectively
stated that Defendants “knowingly caused harm to [Joshua, J,
and C] by physically assaulting [Joshua, J, and C] with various
objects and with their hands.” (A6021, A6024, A6030.) The
jury was told that Counts 5 and 9 “alleges that” Defendants
“knowingly caused harm to [J and C, respectively] by forcing
[them] to ingest hot sauce, red pepper flakes, and raw onion” [in
the case of J] (A6023) or “hot sauce and red peppers [in the case
of C]” (A6027). The instruction for Count 11 stated that
Defendants “knowingly caused harm to [C] by withholding
prompt and proper medical care for her dehydration and
elevated sodium levels.” (A6029.) The Defendants’ verdict
sheets similarly set forth these factual allegations under each
respective count. For instance, the form stated for Count 3:
“(Endangering the Welfare of a Child: Physically assaulting
JOSHUA JACKSON with various objects and with their
hands).” (A6054, A6058.) The District Court asked for the
jury’s verdict using these basic allegations to identify each
count. For example, the jury foreperson was asked with respect
to Carolyn: “As to Count Two. Endangering the Welfare of a
Child: Withholding sufficient nourishment and food from




                               67
Joshua Jackson?” (A5963.) The answer was, “Guilty.” (Id.)

       It defies common sense to believe that the jury found that
Defendants physically assaulted their adopted children, withheld
sufficient nourishment and water from them, and forced them to
ingest hot sauce, red pepper flakes, and raw onion—but that
such conduct did not cause the marks and bruises, the
malnourishment, the hypernatremia, and the children’s other
injuries and medical issues. In fact, the instruction for Count 10
was explicit on the question of causation:

       Count Ten alleges that from on or about April 10,
       2010 through on or about April 15, 2010, within
       the special maritime and territorial jurisdiction of
       the United States, at Picatinny Arsenal
       Installation, in Morris County, in the District of
       New Jersey, and elsewhere, the defendants,
       Carolyn Jackson and John E. Jackson, having a
       legal duty for the care of and having assumed
       responsibility for the care of [C], born April 7,
       2008, knowingly caused harm to [C] by causing
       her to ingest excessive sodium and a sodium-
       laden substance while restricting her fluid intake,
       causing [C] to suffer hypernatremia and
       dehydration, a life-threatening condition, and
       made [C] a neglected child, and a child upon
       whom cruelty has been inflicted, as I have defined
       for you previously, in violation of Title 18, United
       States Code Sections 13 and 2, and N.J.S.A.
       Section 2C:24-4a.

(A6028.) The jury returned a guilty verdict on this count as to




                               68
Carolyn.

        Given these circumstances, the District Court committed
reversible error by downplaying the severity of Defendants’
criminal misconduct. According to John, “[t]he government
incorrectly asserts that the court erroneously minimized the
defendants’ conduct as ‘mistaken,’ ‘merely “foolish,”’, or ‘bad
parenting.’” (John’s Brief at 46 (quoting Appellant’s Brief at
57-59).) “While the court indeed uttered these particular words
during the over ten-hour sentencing hearing, they do not,
individually or collectively, reflect the court’s view of the
offenses as trivial.” (Id.) John goes on to claim that the District
Court fully took into account his role in the offenses. Although
the District Court did acknowledge, for instance, that it was
satisfied that Defendants committed a second degree offense and
that the children suffered pain, its more dismissive sentiments
cannot be set aside so easily. After all, it did impose lenient
sentences, while “reject[ing] many of the government’s claims
regarding causation and degree of harm.” (Id. at 9 (emphasis
omitted).) Carolyn herself continues to minimize the offenses
she committed by indicating (like the District Court) that
Defendants could have been charged with a crime of the fourth
degree under Title 9.

        While John was clearly less culpable than his wife and
thereby deserved a shorter sentence than she should have
received, the District Court unduly minimized his role here.
Simply put, this was not a case in which (as the District Court
put it) he merely “watched” and “tolerated” Carolyn’s conduct.
(A6708.) On the contrary, the jury found that John conspired—
i.e., agreed—with Carolyn to endanger the welfare of a child—
and that he was criminally liable for nine substantive child




                                69
endangerment counts. In fact, he was found guilty of the same
substantive offenses as Carolyn,17 with the exception of the
charges for withholding sufficient nourishment and food from J
and for causing C to ingest excessive sodium and a sodium-
laden substance while restricting C’s fluid intake.

         Accordingly, the sentences imposed failed to “reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense”—as well as to account
for the “nature and characteristics of the offense.” Given the
serious harm that the jury indicated Defendants inflicted on
Joshua, J, and C, this was not a simple case of bad or misguided
parenting. Nevertheless, the District Court indicated that what
Carolyn was attempting to do was actually brave: “But, let’s not
forget, five kids in the house, three of them being home
schooled. Stupid to think you could do it all. If it had worked
out, if it had worked out, it would have been called brave. Just
remember that everybody. If it had worked out, that would have
been called brave.” (A6734.) How is it “brave” to make a
young girl ingest excessive sodium and then deny her adequate

       17
          The jury was charged on the theory of “Accomplice
Liability; Aiding and Abetting (18 U.S.C. § 2(a)).” (A6042
(emphasis omitted).) The District Court also explained that the
jury could find Defendants guilty of the substantive offenses
“based on the legal rule that each member of a conspiracy is
responsible for crimes and other acts committed by the other
members, as long as those crimes and acts were committed to
help further or achieve the objective of the conspiracy and were
reasonably foreseeable to Carolyn Jackson and John E. Jackson
as a necessary or natural consequence of the agreement.”
(A6039.)




                               70
medical care when this excessive sodium causes a life-
threatening medical condition? While we do not suggest at this
time that the District Court must accept the sentences proposed
by the government, it was also inappropriate, especially in the
light of the severity of the injuries inflicted in this case, to
compare the government’s position to a football game:

               Nineteen years for Carolyn Jackson for
       this? Are you kidding me? Fifteen years for Mr.
       Jackson for this? Are you kidding me? Why
       can’t people think clearly. This is not a game.
       This is not the Giants versus Miami. This is not
       how many touchdowns do we win by. This is life.
        And if you want the proportionality, I know they
       say the same offense. We don’t have a same
       offense. This is one of a kind. Let’s hope the
       government is able to duck another one. Let’s
       hope I am. But, the bottom line is, this is serious,
       19 years and 15 years, give everybody a break and
       let’s get real.

(A6729.) Stating that society as a whole was not harmed by
Defendants, the District Court observed that “[t]hey were not
running around State lines, finding people, committing real
federal offenses. Real ones.” (A6731.) Even if the District
Court was merely responding to a specific argument the
government raised with respect to deterrence (i.e., that
Defendants were a threat to their future grandchildren), it still
minimized the seriousness of their conduct as compared with so-
called “real federal offenses.”

       The District Court understandably took into account the




                               71
collateral consequences facing Defendants as a result of their
convictions and underlying conduct. Specifically, it noted that
they lost custody of their biological children (a decision that was
partially overturned on appeal), that lengthier sentences would
further remove them from two of their biological children’s
lives, and that they were now “dead” to their third biological
child (JJ). John also lost his military career and his pension—he
was discharged from the United States Army under other than
honorable conditions for unacceptable conduct. Yet these
consequences, which were the understandable results of their
own criminal conduct, must be weighed against the harm they
caused to the actual victims in this case. If anything, the losses
they have incurred demonstrate that this is not a case of
disadvantaged individuals who may have believed they had no
choice but to engage in criminal conduct. Instead, Defendants
were the well-educated and respected parents of several
biological and adopted children, and John, in particular, was a
career military officer with twenty-two years of service. Yet
they still endangered the welfare of their children despite their
many advantages.

       According to John, the government’s theory rests on the
premise that probation is not punitive, and it ignores the $15,000
fine and the requirement that John serve 400 hours of
community service. We do not dispute the punitive nature of
probation or the relevance of the other components of John’s
sentence. Instead, we simply agree with the government that,
under these specific circumstances, the District Court’s sentence
of probation (and a fine and community service) did not really
take account the seriousness of John’s offense, the need to
promote respect for the law and to provide just punishment, and
the nature and circumstances of the offense. We further note




                                72
that, even under the state sentencing scheme, there is a
presumption of imprisonment for second degree offenses, which
is overcome only when the sentencing judge finds that
imprisonment would constitute a serious injustice overriding the
need to deter others. See § 2C:44-1d.

        Section 3553 also requires the sentencing court to
consider the issue of deterrence. The lenient sentences imposed
here clearly failed to afford either specific or general deterrence.
 The District Court stated that “everything that [John] lost is
deterrence, both specific and general.” (A6725.) “And
everything that the Army may want in terms of showing that it
doesn’t like things like this going on at the base, you have
somebody that high up who’s taken down, that all happened
already.” (Id.) With respect to Carolyn, it indicated that her
prison sentence would demonstrate that her conduct was
intolerable. However, it also observed that: “I don’t need to be
worried about doing something with the sentence to deter. I
really have a problem with saying under the ACA I have to be
doing Army base cleanup. That’s not what the sentence is
about. And I specifically reject that that should be a piece in
terms of the deterrence.” (A6726-A6727.) With respect to the
need for specific deterrence, we note that the criminal conduct
involved conspiracy and various acts of neglect and cruelty
committed over a period of time against three different victims.
Cf., e.g., United States v. Kane, 639 F.3d 1121, 1131-32 (8th
Cir. 2011) (“Far from demonstrating Kane posed no risk to
recidivate, we observed, ‘The facts show Kane repeated her
crime over and over again. Instead of protecting her daughter
and choosing to stop participating in her daughter’s abuse after
the first, or 50th, or 150th molestation, Kane continued to hold
her daughter down or block the door on more than 200




                                73
occasions while Champion sexually violated the child.’”
(quoting United States v. Kane, 552 F.3d 748, 753 (8th Cir.
2009))). Especially given the District Court’s statement that, “if
it had worked out, [the parenting] would have been called
brave,” (A6734), the sentences “convey to Defendants (and
others who may share their parenting ‘philosophy’) that their
conduct might not have been so terrible after all.” (Appellant’s
Brief at 69 (citation omitted)).

        Section 3553(a)(6) directs the sentencing court to
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” According to the government, the
District Court overlooked other federal child abuse cases by
focusing on state sentencing policies and hypothetical state
sentences. According to John, most of the federal cases cited by
the government are distinguishable (specifically all but one
implicated federal murder charges). The District Court also
noted that the government “settled the case through a plea of
somebody who was using a platform called KIK, had 600 phone
calls to young girls, met 6 of them, had sex with them.”
(A6728.) The government was satisfied with a twenty-year
sentence even though the conduct in that case was significantly
more harmful than what occurred here. But the government still
sought “19 years [for Carolyn] and 15 years [for John].” (Id.)
Nevertheless, we question how this other case (in which the
defendant pled guilty and still received a twenty-year sentence)
justifies sentences of 24 months’ incarceration and probation.
The District Court further referred to a New Jersey state court
proceeding in which the defendant was sentenced to probation
where a hypernatremia episode resulted in permanent brain
damage. However, one of the federal cases cited by the




                               74
government “involved a prosecution for a state offense under
the ACA, i.e., willfully and maliciously engaging in child abuse
under Oklahoma law” in which the defendant received a
sentence of 144 months. (John’s Brief at 40-41 (citing United
States v. Hill, No. 5:11-cr-00152-F (W.D. Okla.).) We have
already observed that, while the District Court went too far by
considering state sentencing practices to the exclusion of federal
sentencing principles, a sentencing court “likely can consider
what a state defendant would receive if he had been prosecuted
in state court” (Appellant’s Brief at 52.) Even so, there is still a
presumption of imprisonment for offenses of the second degree
under New Jersey law. See § 2C:44-1d. In addition, “crimes
involving multiple victims represent an especially suitable
circumstance for the imposition of consecutive sentences.”
State v. Molina, 775 A.2d 509, 512 (N.J. 2001) (citing State v.
Carey, 775 A.2d 495, 504 (N.J. 2001)); see also, e.g., N.J. Stat.
Ann. § 2C:43-6b (authorizing sentencing court to impose
periods of parole ineligibility where it is clearly convinced that
aggravating factors substantially outweigh mitigating factors).
In addition, the District Court should also consider on remand a
recent state court disposition in which the judge “imposed a 25-
year sentence on a mother for the manslaughter of her daughter
and two 10-year consecutive sentences for the endangerment of
her other two children.” (Appellant’s Reply Brief at 23 n.14
(emphasis omitted) (citing State v. Rezireksyon, No. 11-003445
(Essex County)).)

       We also agree with the government that the sentences did
not properly account for “the history and characteristics” of
these two Defendants.

       Admittedly, Defendants did express some remorse for




                                75
their actions, although at the same time they offered
justifications for what they had done or focused on what they
suffered as a result of their conduct. Even the government
acknowledges that “John ‘extend[ed] a sincere apology to all of
my children.’” (Appellant’s Brief at 72 (citing A6632-A6633).)
 Yet he also claimed that “[w]ith all my heart I believed that I
was rearing all of my children with lawful discipline.” (A6633.)
 In a written statement, Carolyn asserted that she was
heartbroken over her mistakes as a parent. While she claimed at
the sentencing hearing that she took responsibility for her
actions and “won’t make excuses” (A6630), she also stated that
“I probably was not equipped to handle that responsibility”
(A6629). Carolyn, like the District Court, focused on what she
had lost as a result of her own actions. Asserting that “I would
like to tell you that I directly feel like I have lost what’s most
important to me, and that’s my family,” she explained that, “as
[JJ] eloquently demonstrated this morning, he, [J] and [C] will
never be a part of our family again.” (A6630.) While the
District Court credited Defendants with how they conducted
themselves during JJ’s testimony, Carolyn’s defense counsel
vigorously attacked him and his credibility. He was called a
“liar” (A2173), a “habitual” liar (A5742), a “pathological” liar
(A2486), a “disruptive” kid (A2246), and a “marionette”
(A5744). Character witnesses were called to attack his
reputation. See, e.g., Kane, 639 F.3d at 1136 (“Instead of
accepting responsibility for her crimes, Kane challenged the
truthfulness of her child’s testimony at trial, calling the child a
liar, as the child mustered the courage to confront her abusers.”).

       More importantly, the government appropriately takes
issue with the emphasis that the District Court placed on John’s
military record. The District Court turned to a Sentencing




                                76
Commission policy statement stating that “[m]ilitary service
may be relevant in determining whether a departure is
warranted, if the military service, individually or in combination
with other offender characteristics, is present to an unusual
degree and distinguishes the case from the typical cases covered
by the guidelines.” U.S.S.G. § 5H1.11; see also, e.g., §
3553(a)(5) (requiring court to consider “any pertinent policy
statement”). According to the District Court:

              So, what stands out in the 3553 and
       3553(a) analysis is what role that military service
       should play. The focal point of the defense’s
       argument, quite different argument than presented
       for Mrs. Jackson, it was something that totally
       guided the way the family lived. But, apparently
       Mr. Jackson was a stellar soldier. I don’t think
       we think enough about that, what that means in
       this day and age when somebody chooses to be a
       soldier. And as this man did, chose when he was
       young and stuck it out and moved his family
       around and sought to excel and apparently was
       excelling.

               I thought a troubling point came, Miss
       Jampol [an Assistant United States Attorney] kind
       of came close to it, Mr. Shumofsky [another
       federal prosecutor] came down on it with two feet
       when in his closing remarks to the jury, he said
       that to the extent that Mr. Jackson is characterized
       as not really being around for some of the abusive
       acts ascribed to both parties, there came a point
       when he was back from his tour in Iraq and he




                               77
      didn’t have Iraq to hide behind anymore.

             I don’t think that’s what military service is.
       I don’t know if he would say that again. Mr.
      Shumofsky, you argued very hard, and I admire
      your zeal, but Iraq is not something to hide
      behind. Military service is something, frankly, to
      praise when it is pursued as Mr. Jackson did. So,
      we have that.

(A6705-A6706.) The District Court “put [John] in a separate
category” because of his military service:

              History and characteristics of the
      defendant, we’ve talked about his military career.
       And I put him in a separate category, rightly or
      wrongly, of citizens before this Court because of
      that military service. Because of the times we are
      in when it is volunteer service. Because of the
      quality of the service. Because of the hardship of
      his family that was subjected to his military
      service. Because of the risks that he took when he
      went abroad to fight. Because he was in combat.
      I believe it was wrong to walk away from that. So
      history and characteristics and of course an
      unblemished criminal record.

(A6717.) It also applied this line of reasoning to Carolyn. “In
recognizing whether I would give her prison time at all and
recognizing when I say that Mr. Jackson is exceptional, she was
exceptional too. She was an Army wife.” (A6732.)




                               78
        While it appears undisputed that military service can be
taken into account in fashioning an appropriate sentence, the
District Court went too far in this case. In particular, it was
improper to place members of the military (and their families)
into “a separate category.” We certainly do not question the
great sacrifices made by men and women who volunteer to
defend this country—as well as their families. However, the
military does not constitute some separate caste or class entitled
to special rights or privileges not shared by other Americans.
Even the policy guideline states that a departure may be
appropriate where military service is present to an “unusual
degree” and distinguishes the case from the typical cases
covered by the Guidelines. In turn, neither the District Court
nor Carolyn herself cite to any case applying § 5H1.11 to
military spouses or other family members. John’s military
service was also used as a defense at the trial itself, with the
defense claiming that he did not know what was happening to
the children because he was serving in Iraq. In any event, his
stellar and admirable record as a soldier did little, if anything, to
mitigate the harm suffered by Joshua, J, and C.

       In fact, it is undisputed that these crimes occurred despite
the fact that John was a well-educated and respected member of
the community who had obtained the rank of major in the
United States Army. Like her husband, Carolyn had a college
education, and, having earned a degree in Individual and Family
Studies, she even briefly worked as a teacher. Both Defendants
raised several biological children, and received training about
parenting and child welfare in connection with the adoptions.

      Finally, we are troubled by the particular emphasis that
the District Court placed on Defendants’ appearance and




                                 79
conduct in (and around) the courtroom. It stated the following:

              And I find too, and this is very important,
      not only have I have read all of this stuff, not only
      have I read stuff you haven’t seen, but, I’ve
      watched the Jacksons, many, many times come
      and go in this courthouse. I have seen them in the
      corridors and I have seen other defendants. I have
      seen how people come in dressed very sloppily,
      just lollygagging around in the pews, bringing in
      food, you brought it in today and just kind of
      treating this courtroom like a luncheonette.

             That’s not the way the Jacksons have ever
      behaved. They have had long car rides. They are
      always on time. Always on time. They are
      interacting with the lawyers. One of the things a
      Judge sees, I tell young lawyers this over and over
      again, we see how you interact with your clients.
      If you don’t like your clients or if your clients are
      real big swift pains in the neck, we see it. You
      can’t hide it. We see it.

             I have seen nothing but respect between
      these people and their lawyers, and respect given
      to court personnel and to me. You don’t just do
      that day after day for over two years, not
      everyday, but during the time these proceedings
      have lumbered through this courtroom, without
      saying something about your character. And that
      is inconsistent with the kind of monstrosities that
      the government would suggest were committed




                               80
       upon these little girls, and inconsistent with
       having the kind of vindictiveness against their son
       that is suggested.

(A6722-A6723.) Is it really appropriate to impose sentences of
probation or two years of imprisonment because a defendant’s
attorney did not exhibit any visible animosity to his or her own
client in the courthouse? Defendants’ disciplined attitude in the
courthouse actually is not too surprising given the fact that John
was an army officer (and Carolyn was his spouse). If anything,
it would seem that this same attitude may explain why they used
unnecessarily severe corporal punishment when three very
young children failed to measure up to their exacting standards.
In any event, it was the jury that found that Defendants agreed to
endanger—and endangered—the welfare of Joshua, J, and C,
which, as the jury instructions indicated, resulted in a number of
serious injuries and medical condition. How could one say that,
because a defendant acted in a courteous manner, he or she was
incapable of committing a “monstrosity”—when the jury
returned a guilty verdict on a charge that the defendant
“knowingly caused harm to [a young child] by causing her to
ingest excessive sodium and a sodium-laden substance while
restricting her fluid intake, causing [the child] to suffer
hypernatremia and dehydration, a life-threatening condition”?
(A6028.) Under these circumstances, we do not believe that the
sentences were substantively reasonable.18

       18
          However, we are also troubled by the government’s
surprising references to both murmurs of outrage from the
gallery when the sentences were announced and a press report
claiming that the District Court had essentially negated the
guilty verdict. While the sentence imposed (and the process




                               81
                               IV.

      For the foregoing reasons, we will vacate the sentences
imposed by the District Court and remand for further
proceedings consistent with this opinion.




used) should promote respect for the law, see § 3553(a)(2)(A), a
judge obviously should not sentence someone in order to curry
favor with the public or fail to exercise his or her own discretion
under the three-step sentencing process so as to avoid public
criticism. Furthermore, a press report cannot be used as
evidence that a court committed reversible error.




                                82
McKEE, Dissenting.

        It is impossible for anyone with an ounce of
compassion to read through this transcript without becoming
extraordinarily moved by allegations about what these
children had to endure. Had the defendants been convicted of
assault, or crimes necessarily involving conduct that was in
the same “ballpark” as assault as defined under New Jersey
law, I would readily agree that this matter had to be remanded
for resentencing using the federal guidelines that govern
assault. However, the district court held a ten and a half hour
sentencing hearing in an extraordinarily difficult attempt to
sort through the emotion and unproven allegations and
sentence defendants for their crimes rather than the conduct
the government alleged at trial and assumes in its brief. I
believe the court appropriately did so pursuant to 18 U.S.C.
§3553(a). Accordingly, I must respectfully dissent.
        Before I begin my discussion, however, I must note
that the defendants in this case were acquitted of the only
federal offenses with which they were charged: assault with a
dangerous weapon, with intent to do bodily harm,1 and assault
resulting in serious bodily injury.2 As I discuss more fully in
Section II, these assault charges seem to drive the
government’s argument and the Majority’s analysis. In order
to minimize confusion about the precise nature of the charges
in this case and the conduct that was proven, a chart listing
each of the charges and their outcomes is attached as an


1
 18 U.S.C. § 113(a)(3).
2
 Id. at § 113(a)(6). Both federal assault charges were
dismissed when the district court granted judgments of
acquittal at the close of the government’s case.



                              1
addendum to this dissent.3
I. Sufficiently Analogous Offense Guideline Analysis
       The defendants were charged with what can accurately
be described as incredibly inhumane treatment approaching
(if not actually amounting to) torture of the minor children
whose care and well-being had been entrusted to them. Since
the defendants lived on a federal military installation, they
were subject to federal law pursuant to the Assimilated
Crimes Act.4
        “When an assimilated state offense resembles conduct
for which a sentencing guideline for a federal offense has
been promulgated, the Sentencing Guidelines provide that
‘the most analogous offense guideline’ should be applied.”5
When it is thus necessary to select a “sufficiently analogous”
offense guideline, I agree with the Majority’s adoption of an
“elements-based” approach. The reasons for adopting that test
are thoroughly explained in the Majority opinion.6 However,
for reasons I will explain, I do not agree with my colleagues’
application of that test on this record. I think the Majority’s
application of that test confuses the two steps of the analysis.
It also fails to appreciate several reasons that a sweeping
statute like New Jersey’s endangering the welfare of a child
(“EWC”) statute cannot be sufficiently analogous to the
offenses corresponding to the federal assault guidelines under

3
  See Appendix, Table of Charges Against Carolyn & John
Jackson.
4
  18 U.S.C. § 13(a). Given the Majority’s thorough discussion
of the ACA, I need not reiterate its text or its historical
development. See Maj. Slip Op. at 7–8.
5
  United States v. Finley, 531 F.3d 288, 292 (4th Cir. 2008)
(quoting U.S.S.G. § 2X5.1).
6
  Maj. Slip Op. at 17–20.



                               2
the circumstances here.
        As we explained in United States v. Cothran, “there is
a two-stop process involved [in sentencing for a conviction
without a corresponding federal guideline]: first, the district
court must determine whether there is a sufficiently
analogous [federal] guideline, and, if there is, it must
determine which guideline is most analogous.”7 These two
steps are quite distinct. At step one, the court’s analysis is
limited to a comparison of the elements of the state crime and
any potentially analogous federal crimes. As the Court of
Appeals for the Eighth Circuit has explained, “[D]etermining
whether there is a sufficiently analogous guideline to a
particular crime is generally a task of comparing the elements
of federal offenses to the elements of the crimes of
conviction.” 8
        This step-one analysis may result in any one of three
possible outcomes: (1) the court could determine that no
guideline offenses are sufficiently analogous to the
defendant’s conviction and apply the general sentencing

7
  286 F.3d 173, 177 (3d Cir. 2011) (explaining and then
adopting the Eighth Circuit’s approach in United States v.
Osborne, 164 F.3d 434 (8th Cir. 1999)).
8
  United States v. Allard, 164 F.3d 1146, 1149 (8th Cir.
1999); see also United States v. Nichols, 169 F.3d 1255, 1270
(10th Cir. 1999) (“Whether there is a sufficiently analogous
guideline to a particular crime is generally a task of
comparing the elements of the defendant’s crime of
conviction to the elements of federal offenses already covered
by a specific guideline. The determination on this point is a
purely legal one, and the district court need not consider the
underlying factual circumstances of the defendant’s case.”
(citation omitted)).



                              3
provisions contained in 18 U.S.C. § 3553(a);9 (2) the court
could determine that only one guideline offense is sufficiently
analogous to the crime of conviction and rely on that
guideline to sentence the defendant;10 or (3) the court could
determine that there is more than one sufficiently analogous
guideline to guide its sentencing inquiry. In that situation, the
court must then move to step two to select the guideline that
is “sufficiently analogous” to the offense of conviction to
justify sentencing pursuant to that guideline.11 Thus, the court
only gets to step two if more than one federal crime has
elements sufficiently analogous to the crime of conviction to
justify fashioning a sentence that is guided by that federal

9
  See, e.g., Finley, 531 F.3d at 289–90 (finding no sufficiently
analogous federal guideline for “‘knowingly driving or
operating a motor vehicle while under the influence of
alcohol, third offense within ten years’” and “‘driving a motor
vehicle on a highway while [his] operator’s license was
suspended and/or revoked,’” in violation of Virginia law);
United States v. Reyes, 48 F.3d 435, 437-38 (9th Cir. 1995)
(finding no sufficiently analogous federal guideline for the
state offense of driving without a license).
10
   See, e.g., United States v. Calbat, 266 F.3d 358, 362-63
(5th Cir. 2001) (applying “aggravated assault” guideline to an
Assimilative Crimes Act conviction for “intoxication
assault”); United States v. Queensborough, 227 F.3d 149, 152
n.2 (3d Cir. 2000) (applying “criminal sexual abuse”
guideline to an Assimilative Crimes Act conviction for
“aggravated rape”).
11
   See, e.g., United States v. Terry, 86 F.3d 353, 357-58 (4th
Cir. 1996) (comparing “aggravated assault” guideline and
“property damage or destruction” guideline to an Assimilative
Crimes Act conviction for “shooting at an occupied vehicle”).



                               4
crime. At step two, a court may expand its view of the state
crime to include the actual conduct to determine which of
several potentially analogous crimes is the most analogous.12
Indeed, it must do so in order to arrive at an appropriate
sentence. Here, the district court did not find any sufficiently
analogous guideline under step one (the first potential
outcome described above), and therefore never moved to step
two, where consideration of actual conduct would have been
both necessary and appropriate.
       Given the circumstances surrounding these
convictions, the government’s argument addresses the inquiry
at step one. The government claims that the state crimes of
conviction—EWC and conspiracy to commit EWC13—are
sufficiently analogous to offenses corresponding to the
federal assault and aggravated assault guidelines to require
application of those guidelines. As we have explained, when
discussing whether a state crime14 is analogous to a federal

12
   Osborne, 164 F.3d at 439 (“In determining the most
analogous guideline under USSG § 2X5.1, a district court is
to look not merely to the definition of the offenses, but also to
the actual conduct of the individual defendant.”).
13
   As discussed more thoroughly in Section II.A, though the
defendants were charged with two counts of federal assault,
the district court granted judgments of acquittal on those two
counts, and they were never submitted to the jury.
14
   It is important to note that many cases dealing with
U.S.S.G. § 2X5.1’s “most analogous offense guideline”
provision deal not with state crimes that have been
assimilated into federal law under the ACA, but with
sentencing for federal crimes without any corresponding
guideline. See, e.g., Cothran, 286 F.3d at 176–78 (affirming
district court’s conclusion that conveying false information



                                5
guidelines offense, our sister circuit courts of appeals have
compared the elements of the crime of conviction to the
elements of one or more federal crimes. 15 Here, however, the


and threats about carrying an explosive device on an airplane
under 49 U.S.C. § 46507 was most analogous to crimes
corresponding to U.S.S.G. § 2A6.1, which is applicable to
“Threatening or Harassing Communications”); United States
v. McEnry, 659 F.3d 893, 897 (9th Cir. 2011) (finding that
district court erred in holding federal crime of “‘knowingly
and willfully serv[ing] . . . as an airman without an airman’s
certificate authorizing the individual to serve in that
capacity’” under 49 U.S.C. § 46306(b)(7) was most
analogous to crimes corresponding to U.S.S.G. § 2A5.2,
which applies to “Interference with Flight Crew Member of
Flight Attendant; Interference with Dispatch, Navigation,
Operation, or Maintenance of Mass Transportation Vehicle”);
United States v. Rakes, 510 F.3d 1280, 1287-90 (10th Cir.
2007) (affirming district court’s conclusion that conspiracy to
impede or injure an officer under 18 U.S.C. § 372 was most
analogous to crimes corresponding to U.S.S.G. § 2A6.1(a)(1),
which covers certain crimes involving threatening or
harassing communications); Nichols, 169 F.3d at 1269–76
(affirming district court’s conclusion that conspiring to use
weapon of mass destruction under 18 U.S.C. § 2332a was
most analogous to first-degree murder and U.S.S.G. § 2A1.1).
Because these cases are not quite the same as cases wherein a
state statute is assimilated into federal law, I have focused my
analysis on the latter.
15
   See, e.g., Calbat, 266 F.3d at 363 (comparing intoxication
assault under Texas law to the federal offense of aggravated
assault involving serious bodily injury); Osborne, 164 F.3d at
438–39 (comparing vehicular battery under South Dakota law



                               6
government does not point to a single specific federal offense
that has elements sufficiently analogous to New Jersey’s
definition of EWC to justify using the federal assault
guideline to determine these defendants’ sentences for
conviction of that state offense. Instead, the government
concludes that the federal assault and aggravated assault
guidelines, which apply to 41 different sections in the
Statutory Index,16 generally cover the same crimes
encompassed within the EWC statute. However, such blanket
assertions are no substitute for the kind of side-by-side
comparison of elements that the first step of the elements-
based approach requires.17 Moreover, as discussed below, an
attempt to define the myriad types of conduct criminalized
under the EWC statute as assault, and equate the two
dissimilar offenses, overlooks the sweeping nature of the
EWC statute and the imprecision that would result from the
government’s approach.
        New Jersey defines the crime of EWC in two statutes:
N.J.S.A. §§ 2C:24-4a and 9:6-1. Section 2C:24-4a(2) defines
the crime itself:
Any person having a legal duty for the care of a child or who
has assumed responsibility for the care of a child who causes
the child harm that would make the child an abused or
neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.

to the federal offense of assault resulting in serious bodily
injury); Allard, 164 F.3d at 1149 (comparing vehicular
battery under South Dakota law to the federal offense of
involuntary manslaughter).
16
   The Statutory Index specifies which sentencing guideline
matches the federal statute of conviction.
17
   See Calbat, 266 F.3d at 363; Allard, 164 F.3d at 1149;
Osborne, 164 F.3d 434 at 437.



                              7
     1974, c. 119, § (C.9:6-8.21) is guilty of a crime of the second
     degree.18

     Accordingly, here, the jury instructions required the jury to
     find the following elements beyond a reasonable doubt in
     order to find Carolyn and John guilty:
1.   That [J.J.#2, J.J.#3, and C.J.#3] were children;
2.   That the defendant knowingly caused the child harm that
     would make the child neglected or knowingly committed an
     act of cruelty against the child;
3.   That the defendant knew that such conduct would cause the
     child harm or would inflict cruelty upon the child; and
4.   That the defendant had a legal duty for the care of the child or
     had assumed responsibility for the care of the child.19

     For the second element, the jury was instructed that Section
     9:6-120 of the New Jersey Statutes Annotated defines cruelty

     18
        N.J.S.A. § 2C:24-4(a)(2).
     19
        A6009.
     20
        The jury instructions are almost word-for-word recitations
     of the statutory definitions of cruelty and neglect, as defined
     in N.J.S.A. § 9:6-1:

            Cruelty to a child shall consist in any of the
            following acts: (a) inflicting unnecessarily
            severe corporal punishment upon a child; (b)
            inflicting upon a child unnecessary suffering or
            pain, either mental or physical; (c) habitually
            tormenting, vexing or afflicting a child; (d) any
            willful act of omission or commission whereby
            unnecessary pain and suffering, whether mental
            or physical, is caused or permitted to be



                                    8
    as consisting of any of the following acts performed by
    anyone having custody or control of the child:
(a) Inflicting unnecessarily severe corporal punishment upon a
    child;
(b) Inflicting upon a child unnecessary suffering or pain, either
    mental or physical;
(c) Habitually tormenting, vexing or afflicting a child;




          inflicted on a child; (e) or exposing a child to
          unnecessary hardship, fatigue or mental or
          physical strains that may tend to injure the
          health or physical or moral well-being of such
          child.

          Neglect of a child shall consist in any of the
          following acts, by anyone having the custody or
          control of the child: (a) willfully failing to
          provide proper and sufficient food, clothing,
          maintenance, regular school education as
          required by law, medical attendance or surgical
          treatment, and a clean and proper home, or (b)
          failure to do or permit to be done any act
          necessary for the child's physical or moral well-
          being. Neglect also means the continued
          inappropriate placement of a child in an
          institution, as defined in section 1 of P.L.1974,
          c. 119 (C. 9:6-8.21), with the knowledge that
          the placement has resulted and may continue to
          result in harm to the child's mental or physical
          well-being.




                                 9
(d) Any act of omission or commission whereby unnecessary
    pain and suffering, whether mental or physical, is caused or
    permitted to be inflicted on a child; or
(e) Exposing a child to unnecessary hardship, fatigue or mental
    or physical strains that may tend to injure the health or
    physical or moral well-being of such child.21
    The jury instructions then defined neglect as “any of the
    following acts, by anyone having the custody or control of the
    child:”
(a) Failing to provide proper and sufficient food, clothing,
    maintenance . . . medical attendance or surgical treatment . . .
    or
(b) Failure to do or permit to be done any act necessary for the
    child’s physical well-being.22
    In sum, to be guilty of second degree EWC under New Jersey
    law, a defendant must have knowingly harmed or neglected a
    child for whom he or she had a legal duty of care, in the
    manner set forth in the statutes. And the statute itself defines
    at least a dozen acts that would satisfy those elements.
            In contrast, federal assault proscribes a much more
    limited and focused type of conduct. The federal crime of
    assault that the government seems to want the defendants to
    be sentenced for is defined as follows:
1) Simple assault of an individual under 16 years old;23 or
2) Assault resulting in substantial bodily injury to an individual

   21
      A6010. There is a line drawn through the words “or moral”
   in Section (e) of the jury instructions, the word “moral” is
   circled, and there is a check mark in the margin. It is unclear
   whether these words were therefore omitted from the jury
   instructions.
   22
      Id. at 6011.
   23
      18 U.S.C. § 113(a)(5).



                                  10
under 16 years old.24

The lesser of these crimes, the crime of simple assault, “is not
defined anywhere in the federal criminal code,” but “has been
held to ‘embrace the common law meaning of that term.’”25
At common-law, simple assault is a crime “‘committed by
either a willful attempt to inflict injury upon the person of
another, or by a threat to inflict injury upon the person of
another which, when coupled with an apparent present ability,
causes a reasonable apprehension of immediate bodily
harm.’”26 For the second potentially analogous crime, assault
resulting in substantial bodily injury, the statute defines
“substantial bodily injury” as either “temporary but
substantial disfigurement” or “temporary but substantial loss
or impairment of the function of any bodily member, organ,
or mental faculty.”27 Though I agree with my colleagues’
conclusion that the EWC and federal assault offenses need
not be a perfect match, there are nevertheless irreconcilable
problems that prohibit the elements of the assault offenses
from being viewed as sufficiently analogous to the elements

24
   18 U.S.C. § 113(a)(7). Defendants were acquitted of the
related charge of 18 U.S.C. § 113(a)(6), which prohibits
“[a]ssault resulting in serious bodily injury” without the
requirement that the victim be under 16 years of age.
25
   United States v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999)
(quoting United States v. Stewart, 568 F.2d 501, 504 (6th Cir.
1978)); see also United States v. Estrada-Fernandez, 150
F.3d 491, 494 n.1 (5th Cir. 1998); United States v. Juvenile
Male, 930 F.2d 727, 728 (9th Cir. 1991).
26
   United States v. McCulligan, 256 F.3d 97, 103 (quoting
Chestaro, 197 F.3d at 605).
27
   18 U.S.C. § 113(b)(1)(A)-(B).



                              11
of EWC for sentencing purposes under the ACA.
        There are so many ways to violate New Jersey’s EWC
statute that claiming the statute’s elements are sufficiently
analogous to the elements of federal assault for ACA
purposes oversimplifies the crime of EWC, and redefines it to
such an extent that the resulting crime bears almost no
resemblance to the crime defined by the New Jersey
legislature or the policy behind it. Where, as here, the state
criminalizes a wide variety of conduct, the inquiry must be
whether any iteration of the state crime would necessarily
constitute a violation of the federal offense. The district court
correctly concluded that is just not the case here. I realize, of
course, that “assaulting” one’s child could potentially (but, as
discussed below, not necessarily) constitute a violation of the
EWC statute, but that is only one of numerous ways New
Jersey’s statute would be violated; the disconnect between
such conduct and the elements of assault under federal law is
just too great to consider one to be sufficiently analogous to
the other to control sentencing for EWC under New Jersey
law.
        The district court recognized that none of the federal
assault offenses are aimed at many of the particular elements
of EWC. For example, the federal assault statute does not
proscribe crimes of neglect, like the failure of a child’s
caregiver to provide proper meals, schooling, medical
attention, or clothing. Nor does it prohibit many of the acts of
cruelty, such as “[h]abitually tormenting, vexing or afflicting
a child” or “[e]xposing a child to unnecessary hardship,
fatigue, or mental or physical strains,” that are elements of
EWC.28 No definition of assault, no matter how expansive,
includes such elements. Yet, such conduct would constitute a

28
     N.J.S.A. § 9:6-1.



                               12
clear violation of New Jersey’s EWC statute. The Majority’s
conclusion that EWC is sufficiently analogous to assault
oversimplifies the former statute’s wide sweep while
simultaneously ignoring and obfuscating its breadth.
        This incongruence is amplified and best illustrated by
the fact that New Jersey actually permits some “assault”
under the EWC statute. The statute criminalizes “inflicting
unnecessarily severe corporal punishment upon a child.”29
Thus, moderate corporal punishment would not constitute a
violation of the statute. Indeed, severe corporal punishment
would fall outside the reach of the EWC statute as long as it
could also be deemed “necessarily severe.” And yet, such
sanctioned corporal punishment would definitely satisfy the
elements of federal assault. EWC is clearly focused upon the
unique attributes of the parent/child relationship, and the
district court clearly recognized that and struggled with that
concept in determining whether there was a sufficiently
analogous guideline offense for this state crime. The statute’s
nuanced treatment of corporal punishment makes a finding
that federal assault is sufficiently analogous to the EWC
statute even more unsatisfactory.
        Finally, even if the district court were to look at the
actual conduct in this case—which it properly refrained from
doing under step one of an elements-based approach—it
would still be unable to conclude that every count of EWC in
this case constituted assault. According to both the indictment
and the jury verdict sheet, I agree that the jury found that the
defendants endangered the welfare of their three adopted
children by “assaulting [them] with various objects and with
their hands,”30 though I must note that the jury was given no

29
     Id. (emphasis added).
30
     A34–53, 6054–61.



                              13
guidance as to the definition of “assault.”31 But none of the
other EWC elements in this case would constitute assault.
The defendants were convicted of withholding sufficient food
and water, forcing the children to ingest hot sauce and red
pepper flakes, and withholding prompt and proper medical
care.32 Though these descriptions are appalling, they simply
do not constitute assault. I readily concede that the
helplessness of these young children, the brutality that was
alleged, and the extraordinarily unsympathetic nature of these
“parents,” all combine to make it very tempting to simply
conclude that these kids were assaulted and to conclude that
the guideline for assault should have guided the court’s
sentencing inquiry. However, although assault is one of many
ways one can endanger the welfare of a child under New
Jersey law, the defendants here were never convicted of
assault (though that crime was included in the indictment),
and the evidence of numerous other types of cruelty clearly
satisfy the elements of the crimes the defendants were
convicted of.
        For the foregoing reasons, I conclude that the crime of
EWC is simply not sufficiently analogous to the crimes
corresponding to the federal assault guidelines, and the
gruesome nature of the charges does not alter that fact.
II. Other Concerns
        Though my main concern in writing separately is to
express my agreement with the district court’s conclusion that
there is no sufficiently analogous guideline to apply in this
case, I would be remiss if I did not also mention other

31
   See Section II.A for a further discussion of the jury
instructions in this case.
32
   See Appendix, Table of Charges Against Carolyn & John
Jackson.



                              14
concerns: first, the role that acquitted conduct plays here;
second, the appropriateness of the district court’s refusal to
find facts after determining that there was no sufficiently
analogous guideline in this case; and finally, the irony of the
government’s opposition to allowing the jury to characterize
the degree of the victims’ harm.33
A. Acquitted Conduct & Unproven Harm
       There is an unspoken argument here that, even though
defendants were acquitted of federal assault, the court could
consider the allegations of assault in imposing a sentence
under the doctrine of acquitted conduct, and that evidence
should have been considered by the district court when
determining whether the assault guideline was sufficiently
analogous.34 Not only would the examination of particular
conduct in step one of the sufficiently analogous analysis
have been improper, given the conduct the defendants were

33
   Because, as the Majority explains, “[o]ur preferred course
of action upon finding procedural error is to remand the case
for resentencing, without considering the substantive
reasonableness of the sentence imposed,” I refrain from
reaching the substantive unreasonableness of the sentence
here, where the Majority’s finding of procedural error alone
provides basis for remanding. Maj. Slip Op. at 53.
34
   Almost as an aside the government suggests that the district
court should have sanctioned the defendants for conduct they
were not convicted of under the doctrine of acquitted conduct.
See Gov’t Br. at 44–5 (“Indeed, courts may even include facts
that might have formed the basis for acquitted counts, as well
as entirely separate uncharged offenses.” (citing United States
v. Watts, 519 U.S. 148, 149 (1997) (per curiam); United
States v. Grier, 475 F.3d 556, 565–68 (3d Cir. 2007) (en
banc))).



                              15
acquitted of, the district court correctly concluded that
attempts to retroactively shoehorn their conduct into the
assault guideline is akin to “fitting a square peg into a round
hole.”35
       As established in United States v. Watts—a decision
that included review of two cases: Watts and Putra—a
sentencing court may consider conduct a defendant has been
acquitted of, so long as that conduct has been proven by a
preponderance of the evidence.36 In Watts, police discovered
cocaine base and two loaded guns in Watts’s house. A jury
convicted Watts of possession with intent to distribute,37 but
acquitted him of using a firearm in relation to a drug
offense.38 During sentencing, the district court found by a
preponderance of the evidence that Watts had possessed the
guns in connection with the drug offense and accordingly
applied a guideline for that conduct that added two points to
his base offense level. 39 In Putra, authorities had videotaped
two instances of Putra and her codefendant selling cocaine to
a government informant. The jury convicted Putra of aiding
and abetting with intent to distribute one ounce of cocaine on
May 8, 1992, but acquitted her on a second count of the same
crime on May 9, 1992. At sentencing, the district court found
by a preponderance of the evidence that Putra had been
involved in the May 9th transaction and calculated her base
offense level by aggregating the amounts of both sales.40 The

35
   A6588.
36
   519 U.S. 148, 157 (1997); see also U.S. v. Grier, 475 F.3d
556, 561 (3d Cir. 2011).
37
   21 U.S.C. § 841(a)(1).
38
   18 U.S.C. § 924(c).
39
   519 U.S. at 150.
40
   Id. at 150–51.



                              16
Supreme Court later upheld these sentencing decisions.41
        Here, as my colleagues explain, the crimes alleged in
the fifteen-count superseding indictment that was filed against
the defendants “can be organized into three different
categories: an assimilated state conspiracy charge [for which
they were both convicted], assimilated state substantive
offenses [of endangering the welfare of a child, for which
John was convicted of ten counts and Carolyn of twelve
counts], and substantive charges under federal law.”42 The
third category includes only one kind of charge: assault as
defined under federal law in 18 U.S.C. § 113(a)(3)
(prohibiting assault with a dangerous weapon, with intent to
do bodily harm) and § 113(a)(6) (assault resulting in serious
bodily injury). As noted at the outset, the assault charges were
dismissed when the district court granted judgments of
acquittal on Counts 13–14 at the close of the government’s
case.43
        Accordingly, the only conduct that was submitted to
the jury for proof beyond a reasonable doubt was the conduct
alleged in counts charging endangering the welfare of a child
under New Jersey law, N.J.S.A. §§ 2C:24-4A and 9:6-1, and
Count 1, charging conspiracy to do so. Importantly, the jury

41
   Id. at 157 (reversing circuit court judgments and remanding
for further proceedings consistent with the opinion).
42
   Maj. Slip Op. at 4.
43
   The defendants were also acquitted of additional counts of
child endangerment—John was acquitted of Counts 2, 10 and
renumbered 13, while Carolyn Jackson was also acquitted of
renumbered Count 13. After the district court entered a
judgment of acquittal on Counts 13 and 14 at the close of the
government’s case, the original Count 15 was renumbered
Count 13 on the verdict sheet.



                              17
was neither instructed on, nor required to find, the elements
of any kind of assault. Moreover, both defendants were
affirmatively acquitted of assault resulting in substantial
bodily injury, one of the offenses the government points to as
sufficiently analogous to the EWC convictions.
        It goes without saying that “[o]nly if a jury of an
individual’s peers concludes beyond a reasonable doubt that
he or she committed each element of the charged offense, as
defined by the legislature, may the court impose
punishment.”44 Therefore, jury instructions must contain all
the essential elements of the crimes charged.45 And yet,
despite the absence of any pertinent jury instructions, and
despite the acquittals on federal assault offenses, the
government now asks us to force the district court to sentence
these defendants as if the jury had found them guilty of
assault. The district court quite correctly resisted that
invitation, and so should we.
        Unlike the issue in Watts regarding the calculation of
the proper base offense level, the district court’s task in

44
   Grier, 475 F.3d at 562 (citing U.S. v. Booker, 543 U.S. 220,
230 (2005))
45
   See, e.g., Chambers v. McDaniel, 549 F.3d 1191, 1201 (9th
Cir. 2008) (holding defendant’s federal constitutional due
process right was violated because jury instructions permitted
jury to convict him of first-degree murder without finding
separately all three elements of the crime: willfulness,
deliberation, and premeditation); United States v. Thornton,
539 F.3d 741, 748-51 (7th Cir. 2008) (reversing convictions
for attempted bank robbery and possessing a firearm in
furtherance of a crime of violence because jury instruction on
the bank-robbery charge failed to include essential element of
actual intimidation).



                              18
sentencing under the ACA occurs much earlier in the
sentencing process. The real question a sentencing judge is
attempting to answer at step one of the sufficiently analogous
guideline analysis is, “Which federal crime—if any—has
analogous elements to the state crime of conviction?” In the
cases consolidated in Watts, there was no question as to
which guideline to use, as the defendants were convicted of
federal crimes that had already been assigned specific
guidelines. In this case, however, the defendants were
convicted of state crimes that did not have a corresponding
federal guideline. Thus, as discussed above, the court had to
determine if the elements of New Jersey’s EWC statute were
so similar to the elements of the federal assault statute that,
for sentencing purposes, a violation of one could fairly guide
sentencing a violation of the other. For all the reasons
explained in Section I, the district court was correct in
concluding that sentencing discretion under one should not be
guided by guidelines established for elements of the largely
dissimilar other.
B. Fact-Finding
        Because there was no sufficiently analogous guideline
in this case, the district court was not required to conduct the
kind of fact-finding necessary to determine the applicability
of guideline adjustments. I agree that this second claim of
error is “moot if this Court finds that the [district court]
correctly determined that there was no sufficiently analogous
guideline,”46 which I believe it did. Both the government’s
argument and the Majority’s conclusion regarding the
necessity of fact-finding here disregards the fact that this case
was not a guidelines case, and that the district court “properly
followed §2X5.1’s explicit instructions by sentencing

46
     John Br. at 30.



                               19
according to § 3553.”47
        I also take issue with the government’s cited support
for its argument that the district court erred in refusing to find
facts. The government notes that the district court disregarded
“all the [Pre-Sentence Report] paragraphs discussing the
offenses.”48 But the district court had sound reason for doing
that, which the government fails to mention. The government
conceded that the statement of facts section of the PSR was
drafted by the prosecution.49 The district court found it was “a
description of the offense conduct taken from the
government’s narrative without any investigation by
presentence,” and it “wasn’t helpful” because “[i]t was
argument.”50 The court’s actions were appropriate given its
conclusion that there was “a real problem with saying that
this is what was proven without judicial factfinding nailing it

47
   Id. at 32 (citing A6589 (excerpt from sentencing transcript
where district court explains decision to sentence according to
§3553 and states this was “not some kind of United States
versus Koon [situation] where I’m saying this is just so unfair,
I’m going to make up this mechanism and then we’ll make it
stick . . . . This is in the guidelines. The guidelines in 2X5.1
anticipated there would be a time, under the ACA or some
other assimilative statute where we might have to do this.”)).
See Koon v. United States, 518 U.S. 81 (1996).
48
   Gov’t Br. at 43 n.19.
49
   A6072 (prosecution admitting to writing statement of facts
during motion hearing), A6740 (same during sentencing
hearing). Though the government stated that its composition
of the PSR’s statement of facts is “what is done in almost
every PSR in this District,” the district court disagreed.
A6740–41.
50
   A6738–39.



                               20
down because that’s not what a jury found.”51 The court had
every right to refuse to rely on a document that it believed
was more the result of the government’s advocacy than an
objective effort to assist the court at sentencing. It is clear
from the sentencing hearing that the district court was not
convinced by a preponderance of the evidence of all of the
conduct that the government had alleged and relied on for
sentencing purposes. Thus, after discovering that “Probation
did no independent investigation at all regarding those facts,”
the district court was correct to ignore the PSR’s statement of
facts and base a sentence on the elements of the offenses that
were proven at trial.52
C. A Final Irony
       Before concluding, I think it is important to emphasize
something about the government’s argument here. It is a
position that is ironic at best, and disingenuous at worst.
During the trial, the defense asked the court to have the jury
return a verdict with interrogatories that would have shown
the specific harm the jury was convinced had been proven. 53

51
   A6739.
52
   A6740.
53
   A5468–70. This discussion included reference to N.J.S.A. §
9:6-8.21(c), which defines “abused or neglected child,” in
relevant part, as:

      [A] child less than 18 years of age whose parent
      or guardian, as herein defined, (1) inflicts or
      allows to be inflicted upon such child physical
      injury by other than accidental means which
      causes or creates a substantial risk of death, or
      serious or protracted disfigurement, or
      protracted impairment of physical or emotional



                              21
In the end, the government successfully opposed the
defendants’ request that the jury make specific findings as to
the degree of harm allegedly caused by the defendants.54 The
government later explained that “certain things, such as
degree of harm or danger are historically elements of assault,


      health or protracted loss or impairment of the
      function of any bodily organ; (2) creates or
      allows to be created a substantial or ongoing
      risk of physical injury to such child by other
      than accidental means which would be likely to
      cause death or serious or protracted
      disfigurement, or protracted loss or impairment
      of the function of any bodily organ; . . . . (4) or
      a child whose physical, mental, or emotional
      condition has been impaired or is in imminent
      danger of becoming impaired as the result of the
      failure of his parent or guardian, as herein
      defined, to exercise a minimum degree of care
      (a) in supplying the child with adequate food,
      clothing, shelter, education, medical or surgical
      care though financially able to do so or though
      offered financial or other reasonable means to
      do so, or (b) in providing the child with proper
      supervision or guardianship, by unreasonably
      inflicting or allowing to be inflicted harm, or
      substantial risk thereof, including the infliction
      of excessive corporal punishment; or by any
      other acts of a similarly serious nature requiring
      the aid of the court . . . .
54
  See A5457–72 (government’s argument), A5477–78,
5485–88 (court rejecting defendants’ request).



                              22
they are not elements of the crimes for which these
defendants were convicted.”55 Yet, the government now
complains because the court refused to sentence the
defendants for assault. Moreover, the government’s objection
prevented any additional fact-finding by the jury that would
have established the harm that was actually proven. Whether
the government was motivated by a concern about having to
prove conduct that was not an element of the crimes charged,
or whether the objection was a tactic to allow it to later have
the court sentence the defendant for conduct without bearing
the burden of proving it beyond a reasonable doubt, it cannot
be disputed that the objection created the possibility that the
district court may not have been sufficiently convinced of the
degree of harm caused by defendants to analogize the
elements of EWC under New Jersey law to the elements of
the federal assault statute. That, in fact, is what happened.
        On appeal, it is no less difficult to determine the
precise harm that was proven. As the Majority notes, “[g]iven
the expansive nature of the child endangerment instructions
as well as the allegations against [d]efendants (involving
numerous acts of abuse committed over the course of a five-
year conspiracy), we recognize the difficulty in connecting
each count with a specific incident or a particular injury or
condition.”56 This difficulty is due, in part, to an unresolved
dispute regarding the causation of the children’s injuries and
medical conditions.57 Additionally, the government again
contributes to the difficulty by repeatedly citing in its brief
the very sections of the PSR that the court refused to rely on

55
   A6460.
56
   Maj. Slip Op. at 56.
57
   See Maj. Slip Op. at 57 (acknowledging that “the parties . .
. contest causation”).



                              23
during sentencing.58 As the defendants point out, the brief
reiterates much of the harm that defendants allegedly caused,
but we are left with no way of knowing what was actually
proven; especially since the counts charging assault were
dismissed and never even submitted to the jury.
        One of the more egregious examples of the
government’s exaggeration of the harm found by the jury is
its treatment of Joshua’s death. At trial, the court excluded all
references to Joshua’s death—a fact that is not noted in the
Majority opinion—as the government did not charge the
defendants with causing his death. In fact, the first trial in this
case ended in a mistrial, when the government “inadvertently
asked a question suggesting Joshua was no longer alive.”59
During sentencing here, the district court admonished the
government for arguing that the court should consider
Joshua’s death when calculating the sentence:
I do not believe that the government has a right to ask me to
sentence as if the parents contributed to the death of Joshua. .
. . [T]he government walked away from proving a death case
and couldn’t get an expert to opine that they caused his death
and rather backdoor that into this case.60

And yet, the government now argues on appeal that the
defendants “contributed to [Joshua’s] death.”61 Indeed, even
the Majority concedes that “[t]he government admittedly does
read too much into the jury’s verdict.”62 The government’s
continued refusal to accept the limitations of the jury’s

58
   Gov’t Br. at 6–8, 72 n.34.
59
   Gov’t Br. at 17 n.8.
60
   A6695.
61
   Gov’t Br. at 45; see also id. at 54, 75.
62
   Maj. Slip Op. at 56.



                                24
findings is one of the main reasons sentencing was so
challenging in this case. The district court very carefully
sorted through all of this in a ten-and-a-half-hour sentencing
hearing. Given the complexities and ambiguities of this case,
I cannot conclude the court erred or abused its discretion. To
the contrary, the court recognized the disconnect between the
endangering the welfare of a child statute that the defendants
were convicted of and the counts charging federal assault that
were all dismissed. The court then tried to fashion a sentence
that was consistent with the principles set forth in 18 U.S.C. §
3553(a), the general federal sentencing statute. I certainly do
not agree with everything the court said during that ten-and-a-
half-hour inquiry, but I do not think the court erred or abused
its discretion in fashioning these sentences.
        Indeed, the district court did the best it could in this
situation. The government charged the defendants with
federal assault; the district court granted judgments of
acquittal on the two federal assault charges. The district
court’s rationale for granting acquittal on the assault charges
parallels the reasoning that an elements-based approach does
not permit a finding that the federal assault guideline is
sufficiently analogous to the crime of EWC. The court
explained:
I find that the activity is not of an ilk to constitute . . . an
assault as that activity or conduct as contemplated in the
statute. I find that the combination of events, withholding or
activities withholding water, administering hot sauce,
watching [the child] decline and not doing anything about it
does not constitute battery, or would put a victim in the
apprehension of immediate bodily harm.63


63
     A5444.



                              25
Despite the district court’s ruling, the government requests
that we now require the district court to resentence defendants
according to guidelines intended to guide sentences imposed
for the very offense defendants were acquitted of. I am
unwilling to do so.64
        As I conceded at the outset, this is a horrendous case in
which the most innocent among us had to endure atrocious
neglect and cruelty. As Justice Holmes stated over 100 years
ago, “hard cases . . . make bad law.”65 Because of the
ambiguities in the jury’s verdict and the breadth of harm
included in the state offense the defendants were convicted
of, this case is as hard as it is tragic. But I cannot agree with
my colleagues’ conclusion that the district court erred in
imposing these sentences. Accordingly,
I must respectfully dissent from the opinion of my colleagues.




64
   The district court explained its similar finding “that trying
to push findings that would comfortably make the conduct
aggravated assault and going from there under the guidelines
offends fairness to allow the government to charge one thing
and a lower standard of proof to prove something much
harsher and come away with a sentence much greater than the
jury verdict necessarily leads to with the Judge leading the
charge saying oh, yes, it does, because I’m making these
findings.” A6588.
65
   Northern Sec. Co. v. United States, 193 U.S. 197, 364
(1904) (Holmes, J., dissenting).



                               26
APPENDIX

Charges Against Carolyn & John Jackson

                                                                              Carolyn’s   John’s
Count Charged Crime                 Superseding Indictment Description66
                                                                              Outcome     Outcome
1         Conspiracy           to
          Endanger            the
                                                                              Guilty      Guilty
          Welfare of a Child
          N.J.S.A. § 2C:5-2
2         Endangering         the   “[W]ithholding sufficient nourishment
          Welfare of a Child        and food from J.J.#2”                 Guilty          Not Guilty
          N.J.S.A. § 2C:24-4a
3         Endangering         the   “[P]hysically assaulting J.J.#2 with
          Welfare of a Child        various objects and with their hands” Guilty          Guilty
          N.J.S.A. § 2C:24-4a
4         Endangering         the    “[W]ithholding adequate water . . . and
          Welfare of a Child        prohibiting J.J.#3 from drinking water”  Guilty       Guilty
          N.J.S.A. § 2C:24-4a
5         Endangering         the   “[F]orcing J.J.#3 to ingest hot sauce, red
          Welfare of a Child        pepper flakes, and raw onion”              Guilty     Guilty
          N.J.S.A. § 2C:24-4a
6         Endangering         the   “[P]hysically assaulting J.J.#3 with
          Welfare of a Child        various objects and with their hands” Guilty          Guilty
          N.J.S.A. § 2C:24-4a
7         Endangering         the   “[W]ithholding sufficient nourishment
          Welfare of a Child        and food from C.J.#3”                 Guilty          Guilty
          N.J.S.A. § 2C:24-4a
8         Endangering         the   “[W]ithholding adequate water . . . and
          Welfare of a Child        prohibiting C.J.#3 from drinking water” Guilty        Guilty
          N.J.S.A. § 2C:24-4a
9         Endangering         the   “[F]orcing C.J.#3 to ingest hot sauce and
          Welfare of a Child        red pepper flakes”                        Guilty      Guilty
          N.J.S.A. § 2C:24-4a




66
     A34–52.
                                                27
10      Endangering         the “[C]ausing C.J.#3 to ingest excessive
        Welfare of a Child      sodium and a sodium-laden substance
        N.J.S.A. § 2C:24-4a     while restricting [her] fluid intake,
                                                                               Guilty          Not Guilty
                                causing [her] to suffer hypernatremia
                                and dehydration, a life-threatening
                                condition”
11      Endangering         the “[W]ithholding prompt and proper
        Welfare of a Child      medical care for C.J.#3’s dehydration          Guilty          Guilty
        N.J.S.A. § 2C:24-4a     and elevated sodium levels”
12      Endangering         the “[P]hysically assaulting C.J.#3 with
        Welfare of a Child various objects and with their hands”               Guilty          Guilty
        N.J.S.A. § 2C:24-4a
13      Assault                 “[W]ith intent to do bodily harm               Judgement       Judgment
        18 U.S.C. § 113(a)(3)   assaulted C.J.#3 with a dangerous              of              of
                                weapon”                                        Acquittal       Acquittal
14      Assault                 “[I]ntentionally     assaulted      C.J.#3,    Judgement       Judgement
        18 U.S.C. § 113(a)(6)   resulting in serious bodily injury”            of              of
                                                                               Acquittal       Acquittal
1567    Endangering         the “[W]ithholding prompt and proper
        Welfare of a Child medical care for C.J.#3’s fractured Not Guilty                      Not Guilty
        N.J.S.A. § 2C:24-4a     humerus”




67
  After the district court entered a judgment of acquittal on Counts 13 and 14, the original
Count 15 was renumbered Count 13 on the verdict sheet.
                                                28
