UNITED STATES of America, Plaintiff-Appellee, v. James S. PEEBLES, Defendant-Appellant, 375 F. App'x 288

Reversed and remanded with instructions by unpublished opinion. Judge DUNCAN wrote the majority opinion, in which Judge DAVIS concurred. Judge WILKINSON wrote a dissenting opinion. Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge: This appeal arises from a prosecution under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. After pleading guilty to the offense of aggravated speeding to elude arrest under N.C. Gen.Stat. § 20-141.5, Appellant James Peebles received a prison sentence of twelve months and one day.

Because his maximum sentence under North Carolina law would have been eight months, we hold that the district court violated the ACA by not imposing “like punishment.” 18 U.S.C. § 13. Accordingly, we vacate Peebles’s sentence and remand for resentencing. I. On September 9, 2007, in Alleghany County, North Carolina, James Peebles raced down the Blue Ridge Parkway on his motorcycle, going well over the speed limit. When a National Park Service Ranger tried to stop him, Peebles tried to escape and caused a high speed chase. Using a “rolling road block,” police eventually stopped and arrested him. J.A. 85.

Because this dangerous flight occurred within the special territorial jurisdiction of the United States, Peebles was prosecuted under the ACA. This statute assimilates into federal law offenses that “would be punishable if committed ... within the jurisdiction of the State” in which the relevant federal property is located. 18 U.S.C. § 13(a). Peebles was charged with aggravated speeding to elude arrest under N.C. Gen.Stat. § 20-141.5, and he pleaded guilty. The district court sentenced Pee-bles to twelve months and one day imprisonment, followed by one year supervised release. This appeal followed. II.

On appeal, Peebles argues that the district court violated the ACA by imposing a sentence greater than North Carolina’s statutory maximum. “The proper length of a sentence under the ACA is a question of law subject to de novo review.” United States v. Pate, 321 F.3d 1373, 1375 (11th Cir.2003).

The ACA provides that a person who, within the territorial jurisdiction of the United States, commits “any act ... which, although not made punishable by any enactment of Congress, would be punishable if committed ... within the jurisdiction of the State ... in which such place is situated ..., shall be guilty of a like offense and subject to a like punishment.” 18 U.S.C. § 13(a) (emphasis added). In light of circuit precedent interpreting the highlighted phrase, the government concedes that the ACA prohibited sentencing Peebles beyond North Carolina’s statutory maximum sentence. Appellee’s Br. at 11-12.

See also Pierce, 75 F.3d at 176 (“[A] term of imprisonment imposed for an assimilated crime may not exceed the maximum term established by state law.”); United States v. Young, 916 F.2d 147, 150 (4th Cir.1990) (“[T]he ‘like punishment’ requirement of the Assimilative Crimes Act mandates that federal coux*t sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible.”).

The only disputed question is how to calculate North Carolina’s statutory maximum sentence. Peebles argues that it should be the highest sentence that a state court could have imposed on him. Under our precedent, we are constrained to agree. Unlike most federal criminal statutes,

section 20-141.5 defines aggravated speeding to elude arrest but does not specify the maximum or minimum penalty. Rather, it merely labels the offense “a Class H felony.” N.C. Gen.Stat. § 20-141.5(b). Maximum penalties are codified elsewhere under the North Carolina Structured Sentencing Act, N.C. Gen.Stat. § 15A-1340.10 et seq.

Under this regime, for any felony offense, North Carolina courts have authority to sentence only within a particular range determined by three variables: (1) the class of offense, (2) the offender’s prior record level, and (3) whether the sentence should be aggravated or mitigated beyond the ordinary or “presumptive” sentence. See N.C. Gen.Stat. § 15A-1340.13. The process proceeds as follows. First, courts determine the prior record level by calculating the sum of points assigned to each prior conviction according to

section 15A-1340.14. Then they determine whether the sentence should be aggravated or mitigated by considering sentencing factors under

section 15A-1340.16. At this stag'e, the government must prove aggravating factors beyond a reasonable doubt. The government does not dispute that Peebles would qualify for prior record level I. The government also conceded during oral argument that Peebles’s indictment contains insufficient allegations to support aggravating his sentence. Therefore, the highest sentence Peebles could have received under North Carolina law would have been eight months. See N.C. Gen.Stat. § 15A-1340.17(c)-(d).

Peebles’s presentence report reached the same conclusion: The defendant has zero criminal history points in accordance with NCGS § 15A-1340.14(b)(6) and thus a prior record level of I. A Class H felony combined with a level I prior record results in a presumptive range of a minimum 4 months to a maximum 8 months active imprisonment. J.A. 93. Peebles thus concludes that North Carolina’s statutory maximum sentence would be eight months. The government contends, however, that the statutory maximum sentence should be the highest sentence that could ever be imposed for the offense.

This would be thirty months, i.e., the highest aggravated sentence authorized for someone with prior record level VI. See N.C. Gen.Stat. § 15A-1340.17(c)-(d). The choice between these approaches determines whether Peebles’s sentence of twelve months and one day violated the ACA’s “like punishment” requirement. Given our precedent, we are constrained to adopt Peebles’s contention. Pierce stated that “like punishment” under the ACA means that “one who commits

an act illegal under state law but not prohibited by federal law in an area of federal jurisdiction may be sentenced only in the way and to the extent that the person could have been sentenced in state court.” 75 F.3d at 176 (internal quotations omitted) (emphasis added). This language suggests that the district court’s sentence should not have exceeded the maximum sentence that Peebles himself (rather than any hypothetical defendant) could have received under North Carolina law. See also United States v. McManus, 236 Fed.Appx. 855, 856 (4th Cir.2007) (considering N.C.

Gen.Stat. § 15A-1340.17 and concluding, “[w]e agree with McManus that ... the state maximum sentence was the maximum sentence that could have been imposed on him by a state-court judge”). This conclusion also comports with the congressional purpose underlying the ACA and general principles of federalism. Dating back to 1825, the ACA was designed to fill gaps created where state criminal law became inapplicable because the federal government had reserved or acquired land.

The Supreme Court explained further: When the[] results of the statute are borne in mind, it becomes manifest that Congress, in adopting it, sedulously considered the twofold character of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the states on that subject over all territory situated within their exterior boundaries, and which hence would be subject to exclusive state jurisdiction but for the existence of a United States reservation.

In accomplishing these purposes it is apparent that the statute, instead of fixing by its own terms the punishment for crimes committed on such reservations which were not previously provided for by a law of the United States, adopted and wrote in the state law, with the single difference that the offense, although punished as an offense against the United States, was nevertheless punishable only in the way and to the extent that it would have been punishable if the territory embraced by the reservation remained subject to the jurisdiction of the state. United States v.

Press Publ’g Co., 219 U.S. 1, 9-10, 31 S.Ct. 212, 55 L.Ed. 65 (1911). Here the Supreme Court made clear that the ACA was never supposed to displace the outer limits on sentencing discretion imposed by state law. This underscores Pierce’s implication that a defendant being prosecuted under the ACA should not receive a prison sentence that a state court would have lacked authority to impose. Our holding today also finds support in United States v. Harris, 27 F.3d 111 (4th Cir.1994). There, the defendant was prosecuted under the ACA for driving while impaired under N.C. Gen.Stat. § 20-138.1.

This statute defined driving while impaired but, rather than specify the authorized punishment, provided that punishment should be imposed under N.C. Gen.Stat. § 20-179.

Section 20-179 authorized different punishment levels depending on whether various aggravating or mitigating circumstances had been proved. Although counsel for both sides agreed on the appropriate level, we nevertheless observed: “Other subsections of § 20-179 authorize more severe punishment than that permitted by subsection (k). But the government did not prove the elements necessary to bring Harris within the purview of the other subsections.” Id. at 116. Implicit in that observation is the recognition that the government would have had to present relevant evidence to support the maximum sentence the provision would afford. Given the structural similarity between

section 20-179 and

section 15A-1340.17, Harris indicates that the ACA prohibits sentencing Peebles beyond eight months unless the government had established the elements necessary for the aggravated range or Peebles’s record level had been greater. Because neither occurred, Pee-bles’s actual sentence of twelve months and one day was unlawful. In sum, because North Carolina’s statutory maximum sentence applicable to Pee-bles was eight months, the district court violated the ACA’s “like punishment” requirement by sentencing Peebles to twelve months and one day.

Thus, we vacate Peebles’s sentence and remand for resen-tencing consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. . We find it useful to stress the limits of our holding today. We do not, as the dissent suggests, hold that the ACA requires “identical” rather than like punishment or that Pee-bles's sentence must track what a North Carolina court would have imposed. See Dis. Op. at 20 (denying that Peebles’s “federal sentence should be limited to the individual sentence a state judge would have imposed on him").

We merely adhere to circuit precedent finding that the ACA precludes a prison term outside the minimum and maximum that a state court could have imposed. See United States v. Pierce, 75 F.3d 173, 176 (4th Cir.1996) (stating that under the ACA a defendant "may be sentenced only in the way and to the extent that the person could have been sentenced in state court” (internal quotations omitted)). This does not offend federal sentencing guidelines, which remain fully applicable within that range. . Peebles also challenges how the district court applied the U.S. Sentencing Guidelines. The court applied

section 2A2.4 upon finding it "sufficiently analogous” to Peebles's crime of aggravated speeding to elude arrest. U.S. Sentencing Guidelines Manual § 2X5.1 [hereinafter "USSG”]. We decline to reach this issue because, assuming we found error, the resulting benefit would be trivial. See USSG § 5G1.1 ("Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”). Furthermore, our circuit precedent makes plain that the Guidelines by no means trump the ACA's "like punishment" requirement.

See Young, 916 F.2d at 150 ("[T]he Tike punishment’ requirement of the Assimilative Crimes Act mandates that federal court sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible.”).