                                                   [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                             ____________________

                                   No. 97-4216
                             _____________________
                         D. C. Docket No. 94-10011-CR-SH


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

DIANE M. GASKELL,

                                                           Defendant-Appellant.


                           ________________________

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

                                (February 2, 1998)

Before DUBINA and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.


DUBINA, Circuit Judge:
       This sentencing appeal presents the question of whether a federal judge in a case

governed by the Assimilated Crimes Act (“ACA”), 18 U.S.C. §§ 13 and 7, is permitted to

sentence a defendant to a longer term of probation than state law would permit. Although

this and other circuits have decided analogous issues under the ACA, no circuit court has

ruled on this exact question. We hold that federal judges sentencing under the ACA may

exceed the state statutory maximum term for a sentence of probation when necessary to

effectuate the policies behind the federal probation statutes, 18 U.S.C. §§ 3561-66.



                            I. FACTUAL BACKGROUND

       In 1987, Diane Gaskell (“Diane”) had a son, John Doe (“Doe”).1 Diane married

Robert Gaskell (“Robert”) in 1989, and the couple moved with Doe, Diane’s child from a

previous relationship, to the naval base in Key West, Florida, where Robert was an enlisted

serviceman in the U.S. Navy. At the time of the marriage, Diane was pregnant with the

couple’s child, Kristin Michelle Gaskell (“Kristin”). After living in Key West for several

months, Robert and Diane took Doe, then two-and-one-half years old, to the emergency room

at Florida Keys Hospital in Key West for a rash on his neck and forehead. The admitting

physician noted that Doe had extensive bruising on his cheek, under his eyes, and throughout

his body, including his hip and genital area. The pediatrician suspected sexual and physical


       1
        To protect the identity of Diane Gaskell’s minor son, we will refer to him as John
Doe.


                                             2
abuse based on Doe’s injuries and his vocabulary of sexually explicit words. In response to

questioning by the doctor, Diane stated that Doe had fallen to the floor from his bed which

was two feet above the floor. Robert was present but said nothing.

       The hospital notified the child protection team of Florida’s Department of Health and

Rehabilitative Services (“HRS”), and Doe was temporarily removed from the Gaskells’

custody and placed with foster parents. Once in foster care, Doe made statements to his

caretakers and behaved in a manner that indicated he had been physically and sexually

abused. After less than a month in foster care, Doe was returned to his parental home

pursuant to a state court order.

       On Doe’s first day of school in January, 1990, his teacher noticed severe injuries to

his penis and notified HRS. HRS again removed Doe from the Gaskell residence. After a

hearing, Diane was found to be an unfit mother, and Doe was permanently removed from the

Gaskell household. He has since been legally adopted, and the Gaskells were ordered by the

court to have no contact with him.

       Dr. David L. Corwin (“Dr. Corwin”), Director of the Program on Childhood

Victimization and the Law and Director of Child Forensic Psychiatry at the University of

Cincinnati, examined Doe and reviewed his medical and psychological history. Dr. Corwin

found that Doe was the victim of traumatizing physical, sexual, and psychological child

abuse and that he had been maltreated by Diane and Robert .

       Thereafter, Diane and Robert were indicted by a federal grand jury in the Southern

District of Florida charging them with three counts of child abuse at the U.S. Naval Air

                                             3
Station in Key West. Counts I and II charged the Gaskells with inflicting physical and

mental injury on Doe in violation of Florida Statutes §§ 827.04(1) and 777.011. Count III

charged the Gaskells with inflicting physical injury on Kristin. Diane and Robert were

charged with the state offenses in Counts I through III under the ACA, 18 U.S.C. §§ 13 and

7. Count IV charged Robert alone with involuntary manslaughter in causing the death of

Kristin, in violation of 18 U.S.C. § 1112.2

       Diane agreed to waive indictment and plead guilty to a one count superseding

information which charged her with misdemeanor child abuse. Specifically, the superseding

information states that Diane, by culpable negligence, inflicted and permitted the infliction

of physical injuries and mental injury to Doe, in violation of §§ 827.04(2) and 777.001 of the

Florida Statutes, made applicable to places within the special territorial jurisdiction of the

United States by the ACA, 18 U.S.C. §§ 13 and 7.




       2
        Kristin died on February 10, 1990, while home alone with Robert. Kristin’s autopsy
report concluded that she suffered from Whiplash Shaking Infant Syndrome and that she died
from internal head trauma. Robert’s initial conviction after a jury trial for the involuntary
manslaughter of Kristin was reversed based on error in the admission of evidence and an
incorrect jury instruction. United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993). The
original indictment was dismissed without prejudice, and a new indictment issued. Robert
pled guilty to Counts I and IV of the instant indictment. His sentence is presently on appeal.

                                              4
                                    II. SENTENCING

       At sentencing, Diane Gaskell made several objections, including an objection to the

length of the probationary term permitted under federal law in this case. The district judge

determined that Diane’s offense level was six with a criminal history category of I, such that

the federal Sentencing Guidelines imprisonment range was zero to six months. Because

Diane’s offense of conviction is a Class A misdemeanor, the authorized term of probation

under federal law is not more than five years. See 18 U.S.C. § 3561(c)(2). However, under

Florida law, the maximum term of incarceration allowable for a first degree misdemeanor

is one year, and the term of probation cannot exceed one year. Fla.Stat.Ann. § 775.082(4)(a)

(West 1992); Baldwin v. State, 558 So.2d 173, 174 (Fla. Dist. Ct. App. 1990) (the term of

probation cannot exceed the maximum sentence allowed under the Florida Statutes);

Williams v. State, 402 So.2d 537 (Fla. Dist. Ct. App. 1981) (same).

       The district court sentenced Diane to five years probation with certain special

conditions. The court required that Diane participate in a mental health treatment program,

disclose the nature of her conviction to her employer, and refrain from engaging in any

occupation involving children.

       Diane appeals the length of her probation. She contends that because Florida law

would have allowed a maximum of one year probation, her five-year probationary sentence

violates the ACA which requires that a federal defendant be “subject to a like punishment”

to that which state law would impose. 18 U.S.C. § 13.

                                              5
                                          III. ISSUE

       Whether the district court erred in sentencing Diane to five years of probation for her

conviction under the ACA when the maximum term of probation available under state law

was one year.



                              IV. STANDARD OF REVIEW

       The proper length of a sentence under the ACA is a question of law subject to de novo

review by this court. See James v. United States, 19 F.3d 1, 2 (11th Cir. 1994) (stating that

interpretation of a sentencing statute is a question of law subject to de novo review); United

States v. Pompey, 17 F.3d 351, 353 (11th Cir. 1994) (“The district court’s interpretation of

the sentencing guidelines is subject to de novo review.”).



                                      V. DISCUSSION

       Diane argues that the express terms of the ACA incorporate into federal law not only

the state offense and its elements, but also the punishment prescribed by state law. The ACA

authorizes federal courts to exercise jurisdiction over violations of state law that occur in the

special maritime or territorial jurisdiction of the United States if no federal statute proscribes

such violations. 18 U.S.C. § 13. The ACA, as it read in 1989,3 provided:



       3
        The superseding information alleged that the criminal acts took place during 1989.
Although 18 U.S.C. § 13 has been amended several times since 1989, the pertinent language
relied upon by Diane has not changed.

                                                6
               Whoever within or upon any of the places now existing or hereafter
       reserved or acquired as provided in section 7 of this title, 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) (emphasis added). Diane’s position is that the ACA’s “like punishment”

language requires a district court judge to sentence an ACA defendant within the sentence

duration limits for probation as well as incarceration.

       Prosecution under the ACA is for enforcement of federal law assimilating a state

statute, not for enforcement of state law. United States v. Brown, 608 F.2d 551, 553 (5th Cir.

1979).4 The purpose of the ACA is to provide a body of criminal law for federal enclaves

by using the penal law of the local state “to fill the gaps in federal criminal law.” Id.

(quoting United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974)). The government can

turn to state law for prosecution only if no act of Congress directly makes a defendant’s

conduct punishable. Id.

       Although no United States Court of Appeals has considered the question of whether

a sentence of probation under the ACA can exceed that allowed by state law, two district

courts have addressed this question, reaching opposite results. Diane relies on United States

v. Peck, 762 F.Supp. 315 (D. Utah 1991), in which a federal magistrate sentenced the


       4
               In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)(en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent the decisions of the former
Fifth Circuit issued before October 1, 1981.


                                              7
defendant to two years probation, a $250 fine, community service, and a special assessment

for driving with a suspended license. Under Utah law, the maximum penalty was six months

imprisonment and a $1,000 fine, and probation for the violation automatically terminated

after six months. Id. at 318 Peck violated his probation and moved to terminate revocation

proceedings on the ground that the alleged probation violations occurred after the termination

of the maximum six-month probation period allowed by state law. Id. at 317.

       The district court in Peck concluded that probation was punishment within the

meaning of the ACA’s “like punishment” language and construed this language to mandate

that a probationary sentence under the ACA fall within the maximum and minimum terms

permitted under state law. 762 F.Supp. at 318-19. In doing so, the district court relied on

United States v. Press Publishing Co., 219 U.S. 1 (1911) which stated that an assimilated

crime may be punished “only in the way and to the extent that it would have been

punishable” in state court. Id. at 10.5 The court determined that it lacked subject matter

jurisdiction over Peck and, thus, could not revoke his probation, because he had already

served over six months of the two-year probationary sentence imposed by the magistrate

while state law authorized only six months of probation. Id. at 320.

       The other district court addressing the same issue relied on an exception to the ACA’s

assimilation provisions for cases in which a state penal statute conflicts with an important


       5
        The government’s brief points out that the Supreme Court in Press Publishing, 219
U.S. at 10, interpreted the ACA as it read before a 1909 amendment that inserted the current
“like punishment” language in place of a previous “same punishment” requirement. See Ch.
321, § 289, 35 Stat. 1145, Mar. 4, 1909.

                                              8
federal policy. United States v. Duncan, 724 F.Supp. 286, 287-88 (D. Del. 1989). In

Duncan, a magistrate judge sentenced the defendant to 18 months probation for an

assimilated state charge for alcohol-related reckless driving. Under Delaware law, the

maximum probationary sentence was 12 months.           Id. at 287. After Duncan served 12

months of probation, the magistrate judge revoked his probation and sentenced him to 30

days incarceration. The district court affirmed the validity of the 18 month sentence,

stressing that the policies expressed in the federal probation law preempted the conflicting

state statute. Id. at 288. The Duncan court relied on the reasoning in several circuit court

opinions dealing with federal parole policies, applying them to the context of probation. Id.

(citing United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985) (holding that a federal

parole statute preempted a state statute); United States v. Vaughan, 682 F.2d 290, 294-95 (2nd

Cir. 1982) (same); United States v. Smith, 574 F.2d 988, 992 (9th Cir. 1978) (same)).

       Determination of parole terms is one of the areas in which courts have held that

federal law must preempt state law assimilated under the ACA to preserve federal sentencing

policy. The Second, Ninth, and Tenth Circuits have held that the ACA does not require a

federal court to follow state law concerning parole terms. In Vaughan, the Second Circuit

reasoned that federal correctional policies must govern the term of minimum confinement

and parole eligibility to preserve the correctional administration of federal prisons. 682 F.2d

at 294 (explaining that state law in areas such as good time credits would conflict with

federal policies). Although the Vaughan court maintained that federal courts must apply

state law in determining the range of years for a sentence of incarceration, it refused to bind

                                              9
federal courts to follow state law regarding minimum terms of confinement. Id.; see also

United States v. Pinto, 755 F.2d at 154 (adopting the rule and reasoning of Vaughan); United

States v. Smith, 574 F.2d at 992 (stating that application of state parole policy would be

disruptive to correctional administration).

       In another departure from state sentencing law, the Fifth Circuit in United States v.

Davis, 845 F.2d 94 (5th Cir. 1988), held that a mandatory $50 special assessment under 18

U.S.C. § 3013 should apply to an ACA defendant despite the conflict with a $15 special

assessment required under Texas law. The court reached this conclusion after determining

that the special assessment was in fact a punishment for purposes of analysis under the

ACA’s “like punishment” requirement. Id. at 98. The Fifth Circuit based its holding on

a finding that the term “like” merely implies similarity and “on the principle that state laws

should be assimilated through the ACA in light of federal policy concerns.” Id. at 99

(emphasis added). But see United States v. King, 824 F.2d 313, 316-17 (4th Cir. 1987)

(holding that application of federal assessment which conflicts with state law violates ACA’s

“like punishment” limitation); United States v. Mayberry, 774 F.2d 1018, 1021 (10th Cir.

1985) (same).

       In United States v. Teran, 98 F.3d 831, 835 (5th Cir. 1996), the Fifth Circuit applied

the exception permitting federal courts to decline full assimilation of state law under the

ACA when this would conflict with federal policy in a case involving a challenge to a

magistrate judge’s jurisdiction. The court rejected the defendant’s argument that the ACA

required classification of the underlying offense as a felony because state law allowed a

                                              10
maximum penalty of two years for the charged misdemeanor. Id. (following United States

v. Kelly, 989 F.2d 162 (4th Cir. 1993), in which the Fourth Circuit relied on the ACA

exception for conflicting federal policies to uphold a magistrate judge’s jurisdiction).

         Of all of the analogous circuit court cases dealing with conflicting federal and state

sentencing rules, we conclude that those in the area of supervised release provide the

strongest support for the proposition that federal probation statutes must preempt conflicting

state law when necessary to preserve an important federal policy. In United States v. Burke,

113 F.3d 211 (11th Cir. 1997), this circuit upheld a sentence of one year of imprisonment

followed by one year of supervised release in an ACA case where state law provided for a

one-year maximum term of incarceration. In a brief per curium opinion, the Burke court

adopted the reasoning of the Fourth Circuit in United States v. Pierce, 75 F.3d 173 (4th Cir.

1996).

         The court in Pierce found that although a term of imprisonment imposed for an

assimilated crime may not exceed the state law maximum, federal courts are not absolutely

bound by state sentencing requirements. Id. at 176. Pierce pled guilty and received a

sentence of a one-year term of probation. A magistrate judge revoked his probation for

several violations and sentenced him to 30 days imprisonment followed by a one-year term

of supervised release. The Fourth Circuit held not only that the court could impose a term

of supervised release despite its unavailability under state law, but also that a term of

incarceration plus supervised release that exceeded the state maximum term of imprisonment

did not violate the ACA. Id. at 177-78. The court explained its reasoning:

                                               11
       [A] federal court will not adopt provisions of state law that conflict with
       federal sentencing policy. If limited to the maximum term of imprisonment
       permitted by the state, a district court would be unable to impose an
       appropriate term of supervised release upon individuals it determined to be in
       need of postincarceration supervision, even though the crime was committed
       within an area of federal jurisdiction.

 Id. at 178. Despite the fact that after revocation of Pierce’s probation, the maximum

sentence allowable under state law was 60 days of incarceration, the court upheld the

sentence of 30 days imprisonment followed by one year of supervised release. Id.

       The Eighth circuit followed the holding of the Fourth Circuit in Pierce with regard to

the question of imposing a term of supervised release beyond the maximum sentence of

incarceration. United States v. Engelhorn, 122 F.3d 508, 512 (8th Cir. 1997) (holding that

under the ACA, a term of incarceration and supervised release may exceed the maximum

term of incarceration in an assimilated state statute).

       There are strong similarities between supervised release and probation. In United

States v. Reyes, 48 F.3d 435 (9th Cir. 1995), the Ninth Circuit’s comparison of probation and

supervised release led to a determination that federal supervised release and state probation

were “like punishment” under the ACA. The most significant distinction between the two

sentencing options “is that supervised release is a form of post-imprisonment supervision

while probation is supervision in lieu of incarceration.”     Id. at 438 (citation omitted)

(involving a sentence of incarceration plus supervised release which did not exceed the state

law maximum term). However, “[i]n practice, the similarities between the two forms of

punishment are greater than the differences.” Id. at 438. Both probation and supervised


                                              12
release are discretionary and conditional, involve government supervision, and make a person

subject to incarceration upon revocation. Engelhorn, 122 F.3d at 512. In addition, both serve

the purpose of rehabilitation which furthers the protection of the public during and after the

term of government supervision. Id.

       Because of the strong similarities between probation and supervised release, we

extend the reasoning in Burke, Pierce, and Engelhorn to the context of probation and hold

that federal probation policy warrants an exception to the ACA’s general requirement that

a federal defendant receive a sentence within the maximum and minimum terms set by

assimilated state law. Burke, 113 F.3d 211 (upholding a sentence of incarceration plus

supervised release that exceeds the state maximum sentence term); Pierce, 75 F.3d at 177-78

(stressing that exceeding the state law term was necessary to protect federal sentencing

policy); Engelhorn, 122 F.3d at 512 (same). In this case, the sentencing judge sought to

provide Diane     much    needed supervision, in addition to ensuring that the special

probationary conditions imposed would be achieved. The court mandated that Diane

receive mental health counseling as directed by the probation office and that she refrain from

engaging in any employment involving young children. Those goals could not meaningfully

be effectuated during the course of the one-year term of probation permitted under Florida

law. When assimilated state law provisions conflict with federal policy, federal policy

controls. Pierce, 75 F.3d at 177.

       The present case is a clear example of a case in which a federal judge sentencing

under the ACA needed to depart from state law to preserve the policies behind the federal

                                             13
probation statutes, 18 U.S.C. §§ 3561-66.6 See Duncan, 724 F.Supp. at 288. A child was

severely abused within the territorial jurisdiction of the federal government. Although the

district court could have imposed a term of incarceration of up to six months under the

federal Sentencing Guidelines, it chose instead to impose a lengthy probationary term to

further the important federal policies at stake. The district court took into account the fact

that at the time of sentencing, Diane had two other young children. A primary purpose of

probation is “rehabilitation, the accomplishment of which will serve to protect the public.”

Engelhorn, 122 F.3d at 512 (quoting State v. Cummings, 262 N.W.2d 56, 61 (S.D. 1978)).

The five-year probationary sentence attempts to ensure the safety of any children with whom

Diane might come into contact, including her own, by requiring her to obtain needed

counseling and restricting her from employment involving young children.




       6
        Our holding is consistent with a 1990 amendment to 18 U.S.C. § 3551(a), a provision
of the Sentencing Reform Act of 1984. As amended, the statute reads:

       (a) In general.--Except as otherwise specifically provided, a defendant who has
       been found guilty of an offense described in any Federal statute, including
       sections 13 [the ACA] and 1153 of this title, other than an Act of Congress
       applicable exclusively in the District of Columbia or the Uniform Code of
       Military Justice, shall be sentenced in accordance with the provisions of this
       chapter so as to achieve the purposes set forth in subparagraphs (A) through
       (D) of section 3553(a)(2) to the extent that they are applicable in light of all
       the circumstances of the case.

The underlined portion of the provision was added in 1990 and appears to indicate
congressional intent to preempt conflicting state correctional law in ACA cases. We are
unable to rely on this amendment in deciding this case because it became effective after the
relevant conduct for this case had taken place. Nonetheless, it bolsters our decision.

                                             14
       Moreover, probation allows the government to oversee Diane’s rehabilitation and

gives the federal court the authority to revoke her probation and sentence her to incarceration

if she violates any of the stated conditions. 18 U.S.C. § 3565. The cases upholding a term

of supervised release beyond the maximum sentence allowed under state law would support

a sentence of incarceration if Diane’s probation were revoked, despite the fact that her

probationary period exceeded that permitted under state law. See, Engelhorn, 122 F.3d at

512; Burke, 113 F.3d at 211; and Pierce, 75 F.3d at 177-78. If a federal court revokes

supervised release, it has the power to sentence the individual to additional incarceration.

See United States v. Proctor, 127 F.3d 1311, 1313 (11th Cir. 1997). Similarly, if Diane

were to violate the conditions of her probation, a court could revoke it and sentence her to

a term of incarceration within the limits set by Florida law.

       Finally, our holding merely permits federal judges the flexibility to impose a term of

probation in excess of what state law would permit. We leave intact the established rule that

a term of incarceration under the ACA cannot exceed the limits set by assimilated state law.

See Vaughan, 682 F.2d at 294 (stating that “[i]t is a well established principle that a state

statute that fixes the length of a prison term should control the sentence imposed by federal

courts” under the ACA.); United States v. Garcia, 893 F.2d 250, 254 (10th Cir. 1989)

(explaining that a federal court must stay within maximum and minimum term, but is not

required to “duplicate every nuance” of state sentencing law).



                                    VI. CONCLUSION

                                              15
        The district court determined correctly that the Florida law providing for a one-year

maximum term of probation conflicted with the policies behind the federal probation statute.

The sentencing judge could not have given effect to the federal policies of supervision and

rehabilitation without exceeding the one-year limit for probation under state law. Pursuant

to the exception to the ACA’s “like punishment” requirement for cases in which assimilated

state law conflicts with federal policy, we affirm Diane’s sentence.

       AFFIRMED.




                                             16
