Free Memorandum - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona SHARON K. SEXTON Assistant U.S. Attorney Arizona State Bar No. 012359 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-026-PHX-EHC Plaintiff, v. Michael Davis, Defendant. GOVERNMENT'S DISPOSITION MEMORANDUM

The United States, by and through counsel undersigned, hereby submits this disposition

16 memorandum. On September 10, 2008, the court raised the issue of "restitution" and 17 "jurisdiction." Defendant is before this court as a result of plea agreement, sentencing and 18 ultimate supervised release violation. Defendant waived his appeal rights in his plea agreement, 19 Further, after sentencing, defendant did not file any appeal regarding "restitution" or 20 "jurisdiction." However, the government is filing this memorandum in response to the court's 21 order. 22 1.) Restitution was already denied four years ago by this court. 23 During the September 10, 2008 hearing, the court inquired as to why there was no restitution

24 order and indicated that the court was going to set a restitution hearing. The government 25 advised that if the court were to set a restitution hearing, that it would exceed the 90 day post26 sentencing time limit. (See 18 U.S.C. Section 3664(d)(5).) The court indicated that it was still 27 going to set a restitution hearing. 28 \\\

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The government also advised the court that upon information and belief, the government had

2 already filed a motion for restitution at the time of sentencing and that the court had denied the 3 restitution request. The court indicated that it was still going to set the restitution hearing. 4 Indeed, this court has already ruled on the restitution matter. On July 1, 2004, the

5 government filed a restitution memorandum with supporting documentation. (Docket 49, 51.) 6 On July 26, 2004, the defense responded. (Docket 54, 55.) On May 4, 2005, this court denied 7 the restitution request. (Docket 59.) 8 The government has no additional information regarding restitution. The government has

9 not found any law that would support an order from this court to re-open the issue of restitution 10 or an order the exceeds the 90 day time limit. 11 2.) Burglary is a federal crime defined and punished with respect to state law. 12 During the September 10, 2008 hearing, the court indicated that it did not know how the

13 government had jurisdiction over this crime and ultimately, the supervised release. The court 14 cited to Title 18 U.S.C. Section 1162 in support of its comments. 15 Jurisdiction for this crime arises from Title 18 U.S.C. Section 1153, which is known as the

16 Major Crimes Act (MCA). A companion provision is Title 18 U.S.C. Section 13 which is 17 known as the Assimilative Crimes Act (ACA). Often, the MCA and ACA are referred to in the 18 same legal opinions as they are quite similar. 19 Title 18 U.S.C. Section 1153(a) enumerates the handful of crimes that are violations of

20 federal law in Indian Country. Among those crimes is Burglary. Title 18 U.S.C. Section 21 1153(b) advises that if federal law has not defined or set forth penalties for the crimes in 1153(a), 22 then such crimes are defined and penalized with reference to state law. 23 In the September 10, 2008 hearing, this court indicated that it does not remember ever

24 handling a case involving assimilation of state law. Yet, state law definitions have been 25 routinely assimilated in federal law for years. As an example, in the 1970s, there were only 13 26 enumerated crimes pursuant to the MCA. While some of the crimes, such as murder and 27 manslaughter were defined under federal law, Congress expressly provided that other crimes 28 would be defined and punished with reference to state law, including Rape, Assault with Intent

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1 to Commit Rape, Incest, Assault with a Dangerous Weapon, Assault Resulting in Serious Bodily 2 Injury and Burglary. United States v. Francisco, 536 F.2d 1293 (9th Cir. 1976). The reference 3 to state law amounted to a "practical accommodation of the mechanics of the legislative 4 functions of State and Nation in the field of police power where it is especially appropriate to 5 make the federal regulation of local conduct conform to that already established by the State." 6 Id. at 1297. 7 Both the MCA and ACA adopt state or territorial law to define crimes and punishments

8 where no federal definitions exist and thus, both are "gap-filling" statutes. United States v. 9 Wood, 386 F.3d 961, 963 (10th Cir. 2004). Today, there are several major crimes that continue 10 to be routinely defined and punished under state law, including: Burglary, Maiming, Incest and 11 Felony Child Abuse. (18 U.S.C. Section 1153(a)). 12 Nothing in Section 1153 deems these offense as "state offenses" and/or confers state

13 jurisdiction for these offenses. Indeed, the argument that 1153(b) creates a "state offense" has 14 been routinely rejected. Burglary committed in violation of Section 1153 is a federal offense and 15 a federal prosecution does not place the offense under state jurisdiction or control and there is 16 no state intrusion into Indian country with this offense. United States v. Smith, 387 F.3d 826, 17 830 (9th Cir. 2004); United States v. Male Juvenile, 280 F.3d 1008, 1018 (9th Cir. 2002) 18 (rejecting defendant's argument that because Burglary is defined by reference to substantive 19 state law, that Burglary is not a violation of federal law.) 20 The offense of Burglary is a federal crime, not a state crime, thus, Section 1162 is The assimilated state law, in effect becomes federal law,

21 inapplicable to this offense.

22 transforming a crime against the state into a crime against the federal government. United States 23 v. Wood, 386 F.3d 961 (10th Cir. 2004), citing, United States v. Male Juvenile, 280 F.3d 1008, 24 1018 (9th Cir. 2002). 25 The sentencing procedure for cases involving the MCA and ACA are the same; both require

26 the court to sentence defendant with reference to the federal sentencing scheme to include 27 reference to the federal sentencing guidelines. The only restriction is that the sentence imposed 28 must be between the minimum and maximum sentence that state law establishes for the crime.

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1 Wood at 962. Thus, federal law assimilates only the range of punishment between the minimum 2 and maximum punishment under state law, rather than assimilating every nuance of state law 3 penalties. Id.; United States v. Norquay, 905 F.2d 1157, 1161 (8th Cir. 1990); United States v. 4 Martinez, 274 F.3d 897, 906 (5th Cir. 2001) (recognizing that the circuits unanimously agree that 5 for assimilated crimes, the state law sets the minimum and maximum penalties; See also, Title 6 18 U.S.C. Section 3551(a) which mandates that persons convicted of federal crimes pursuant to 7 Title 18 U.S.C. Section 1153 and 13 shall be sentenced in accordance with federal sentencing 8 laws. 9 At the time of conviction, the minimum sentence for Burglary in state court was probation

10 and the maximum was 8.75 years. Thus, this was the only restriction of defendant's sentence. 11 Further, even if the court had previously imposed the maximum term of 8.75 years, the 12 maximum penalty for a supervised release revocation would still be two years, pursuant to Title 13 18 U.S.C. Section 3583(e)(3). The two year term is unaffected by the prison term actually 14 imposed at sentencing and thus, at this point the 8.75 year maximum is basically irrelevant. 15 16 17 18 19 20 21 I hereby certify that on this 16th day of September, 2008, I electronically transmitted the 22 attached document to the Clerk's Office using the CM/ECF system for filing to the following CM/ECF registrants: 23 Roger Margolis 24 Defense Counsel for Defendant 25 Sharon Werner U.S. Probation Officer 26 by: 27 S/:nbd :nbd 28 Respectfully submitted this 16th day of September, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona S/Sharon K. Sexton SHARON K. SEXTON Assistant U.S. Attorney

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