UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4900

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES S. PEEBLES,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:07-cr-00041-RLV-DCK-1)

Argued: January 27, 2010 Decided: March 19, 2010

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Reversed and remanded with instructions by unpublished opinion.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.

ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North 

Carolina, for Appellant. Donald David Gast, OFFICE OF THE 

UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. 

ON BRIEF: Edward R. Ryan, Acting United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

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.1

I.

On September 9, 2007, in Alleghany County, North Carolina, 

James Peebles raced down the Blue Ridge Parkway on his 

 1 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 

Peebles’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.
3

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 

Peebles 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 
4

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 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.”). 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). 
5

Maximum penalties are codified elsewhere under the North 

Carolina Structured Sentencing Act, N.C. Gen. Stat. § 15A1340.10 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. § 15A1340.13. 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 stage, 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:
6

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 
7

Carolina law. See also United States v. McManus, 236 F. App’x 

855, 856 (4th Cir. 2007) (considering N.C. Gen. Stat. § 15A1340.17 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.
8

United States v. Press Publ’g Co., 219 U.S. 1, 9-10 (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.
9

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, Peebles’s actual sentence of twelve months and one day 

was unlawful.

In sum, because North Carolina’s statutory maximum sentence 

applicable to Peebles 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 resentencing consistent with this 

opinion.2

REVERSED AND REMANDED WITH INSTRUCTIONS

 2 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 ‘like 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.”).
10

WILKINSON, Circuit Judge, dissenting:

I agree with the majority that an offense under the 

Assimilative Crimes Act (ACA), 18 U.S.C. § 13, may be punished 

only within the “the maximum term established by state law.” 

U.S. v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). My concern is 

that Peebles’s novel interpretation of that well-established 

principle disregards our precedent and creates a circuit split 

by requiring federal courts to apply state sentencing guidelines 

to individual defendants. The ACA requires only “like” -- not 

“identical” -- punishment. Every other court that has 

considered the interaction between federal and state sentencing 

practices for ACA purposes has rightly recognized that while the 

generic statutory ranges established by state substantive law 

limit the permissible ACA punishment, federal courts need not 

apply individualized state sentencing calculations. The 

sentence imposed here was reasonable, respected the state 

sentencing range for Class H felonies, and in no sense amounted 

to an abuse of discretion on the part of the district court. 

See Gall v. U.S., 552 U.S. 38 (2007). As a result, I 

respectfully dissent.1

 1 In an opening footnote, see Maj. Op. at 2 n.1, my good 

colleagues in the majority claim to uphold federal sentencing 

practice within the state sentence range, but the majority’s 

three month “range” is so constricted that federal practice 

hardly applies. Contrary to the majority’s protestations, 

(Continued)
11

I.

Even the twelve month and one day sentence that Peebles 

would have us discard does not fully reflect the deadly nature 

of his crime. Certainly the proffered maximum sentence of eight 

months fails to do so in light of his potentially lethal 

behavior. Peebles led police on a high speed chase after 

refusing to pull over his motorcycle for traveling twenty miles 

per hour over the speed limit. Reaching speeds above one 

hundred miles per hour along the winding twists of the Blue 

Ridge Parkway, he fled for some twenty-five miles. Travelers on 

 

individualized state sentencing comes so close to impermissible 

identicality as to render any distinction between the two 

negligible. See infra Part II.C. Second, the majority declares 

the maximum state sentence to be eight months, but that 

declaration begs the question of what state sentence ranges 

apply. Class H felonies are subject to a generic four to thirty 

month range under North Carolina law, and it is that range and 

that maximum, not individualized state procedures, that respects 

Congress’s sentencing policy set forth in 18 U.S.C. § 3551(a). 

See infra Part II.A. Finally, the majority argues that a 

defendant “may be sentenced only in the way and to the extent 

that the person could have been sentenced in state court.” U.S. 

v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). But immediately 

after that language, Pierce emphasized that “like punishment 

does not encompass every incident of a state’s sentencing 

policy” and in fact affirmed the imposition of a federal term of 

supervised release under the ACA instead of requiring state 

probation. Id. at 176-77 (citation omitted). Nothing in Pierce

or our other precedent elevates individualized state sentencing 

procedures above federal sentencing practice, see infra Part 

II.C. In doing so, the majority transforms the ACA from a gap 

filling statute into one of displacement, again in contravention 

of Congress’s express intent in Section 3551(a). See infra

Parts II.A and B.
12

the scenic byway were forced off the road. Peebles passed more 

than a dozen cars in no passing zones while narrowly missing 

head on collisions with two separate vehicles. His mad dash did 

not end until officers from the North Carolina Highway Patrol 

and the Alleghany County Sheriff’s Department set up a rolling 

roadblock. Even then, Peebles was only captured when his 

motorcycle went off the road as he attempted to turn around to 

avoid the roadblock and continue his flight. Something is wrong 

when the twelve month and one day sentence of such a malefactor 

is reduced to a mere eight month maximum. What is wrong is 

appellant’s view of the ACA.

II.

Peebles claims the ACA’s “like punishment” clause, codified 

in 18 U.S.C. § 13(a), requires us to follow state law right down 

to the individualized, defendant-specific provisions of North 

Carolina sentencing practice. But when we move from the generic 

range that a hypothetical defendant could receive under state 

law to the individualized North Carolina calculation that 

Peebles demands, we come perilously close to replacing the ACA’s 

“like punishment” requirement with one of “identical 

punishment.” Peebles’s argument also ignores important guidance 

from other federal statutes, the history of the ACA itself, and 

the extensive caselaw of circuits across the country. The 
13

better understanding of “like punishment” is that the ACA 

directs federal courts to sentence within the generic range of 

permissible state sentences that could be imposed on a 

hypothetical defendant but to follow federal sentencing policy 

so long as it consistent with that range.

A.

As an initial matter, the ACA’s “like punishment” 

requirement must be interpreted in pari materia with 18 U.S.C. 

§ 3551(a), which explains what types of sentences are authorized 

in federal courts. That section indicates that “a defendant who 

has been found guilty of an offense described in any Federal 

statute, including sections 13 and 1153 of this title . . . 

shall be sentenced in accordance with the provisions of this 

[federal sentencing] chapter so as to achieve the purposes set 

forth in [18 U.S.C. § 3553(a)(2)(A)-(D)]”. 18 U.S.C. § 3551(a) 

(emphasis added). The emphasized reference to 18 U.S.C. § 13 

(the ACA) was added by Congress in 1990 and makes explicit the 

fact that federal sentencing procedures apply to ACA crimes. 

See Pub. L. 101-647, § 1602, 104 Stat. 4789, 4843. Even before 

Congress added this reference, courts had already recognized 

that Section 3551(a) provides a statutory directive that federal 

sentencing practices apply to assimilated crimes. U.S. v. 

Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); U.S. v. Garcia, 
14

893 F.2d 250, 253-54 (10th Cir. 1989). Section 3551(a) thus 

gives the term “like punishment” a specific, limited meaning:

within the generic state sentencing range assimilated by the 

ACA, federal sentencing policy determines the actual sentence. 

See, e.g., U.S. v. Pierce, 75 F.3d 175, 176 (4th Cir. 1996).

B.

Further, the legislative history of the ACA itself 

indicates that Peebles’s interpretation of the ACA’s “like 

punishment” clause cannot be correct. Prior to 1909, the law 

that became the ACA required defendants convicted of assimilated 

crimes to “be liable to and receive the same punishment as the 

laws of the state.” Ch. 576, § 2, 30 Stat. 717, July 7, 1898 

(emphasis added). In 1909, however, the “same punishment” 

requirement was replaced with the current ACA formulation of

“like punishment.” See Ch. 321, § 289, 35 Stat. 1145, Mar. 4, 

1909. This switch undercuts Peebles’s assertion that federal 

courts must apply individualized state sentencing procedures. 

Now sentences need only be similar to what would be imposed in 

state court. “The word ‘like’ in the current version of the ACA 

thus implies similarity, not identity.” Marmolejo, 915 F.2d at 

984. Peebles’s contrary position may have been good law during 

Teddy Roosevelt’s administration, but for over a century 
15

Congress has required only “like punishment,” which does not 

require reference to individualized state sentencing procedures.

Additionally, the purpose of the ACA suggests that Peebles 

mistakenly interprets the “like punishment” requirement. The 

ACA exists to fill gaps in federal criminal law so that 

wrongdoing on federal land can be punished even if Congress has 

not thought to criminalize a specific act. See, e.g., U.S. v. 

Gaskell, 134 F.3d 1039, 1042 (11th Cir. 1998) (“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.”) (internal citations omitted); 

Garcia, 893 F.2d at 253 (same). Because the purpose of the ACA 

is gap filling, it is fair to infer that courts should only 

assimilate state law to the extent that there is no 

corresponding federal guidance. In the present case, there is 

no federal law of aggravated speeding to elude arrest, and the 

district court correctly assimilated that North Carolina crime. 

However, there are comprehensive federal sentencing laws, and it 

would be counterintuitive to overturn those federal procedures 

by incorporating individualized state sentencing through a mere 

gap filling measure.
16

C.

Peebles attempts to overcome the statutory obstacles of 

text, history, and purpose by claiming that our prior 

precedents, including United States v. Pierce, 75 F.3d 173 (4th 

Cir. 1996), United States v. Harris, 27 F.3d 111 (4th Cir. 

1994), and United States v. Young, 916 F.2d 147 (4th Cir. 1990), 

suggest that “like punishment” requires individualized 

sentencing based on state law. But those decisions actually 

buttress what 18 U.S.C. 3551(a) and the history of the ACA 

already make clear, indicating that the normal ACA practice is 

to use federal, not state, sentencing procedures to the fullest 

extent possible within the boundaries of assimilated substantive 

state law. As Pierce explained, “state law may provide the 

mandatory maximum or minimum sentence, but the federal 

sentencing guidelines determine the sentence within these 

limits.” 75 F.3d at 176. Indeed, we noted in Young that “[t]he 

[Federal] Sentencing Reform Act and the [Federal] Sentencing 

Guidelines adopted thereunder apply to assimilated crimes,” 

explicitly rejecting claims that federal judges should apply 

state sentencing practices to ACA offenses. 916 F.2d at 150. 

If Peebles is correct that individualized state sentences are 

required, he comes close to rendering the concept of “maximum or 

minimum” sentences irrelevant. If he were arguing for a generic 

state law range, I would agree that the ACA requires federal 
17

courts to sentence within such boundaries. But he does not. 

Peebles asks to be sentenced between an individualized “maximum” 

of eight and an individualized “minimum” of five months. This 

so-called three month “range” is so defendant-specific when 

compared to the statutory four to thirty month range for a 

hypothetical Class H felon that it is nearly meaningless.

Peebles’s argument also disregards the fact that we have 

rejected requests to incorporate the trappings of individualized 

state sentencing on previous occasions. We have recognized that 

“[t]he phrase ‘like punishment’ . . . does not encompass every 

incident of a state’s sentencing policy.” Harris, 27 F.3d at 

115. Far from it. A federal court “will not assimilate a state 

sentencing provision that conflicts with federal sentencing 

policy.” Pierce, 75 F.3d at 176. In Pierce, we went so far as 

to uphold a federal ACA sentence that included a term of 

supervised release, even though North Carolina sentencing law 

only provides for probation. Id. at 177. Even more 

importantly, we affirmed despite the fact that the supervised 

release term exceeded the maximum jail term allowed under state 

law because “supervised release is not considered to be a part 

of the incarceration portion of a sentence and therefore is not 

limited by the statutory maximum term of incarceration.” Id. at 

178. As a result, we declined to follow state probation rules 

and instead gave full force to federal sentencing policy within 
18

the ACA’s boundaries. Id. See also U.S. v. Engelhorn, 122 F.3d 

508 (8th Cir. 1997) (same); U.S. v. Burke

Peebles thus invites us to pick and choose the portions of 

state sentencing policy that we will now follow. Under 

, 113 F.3d 211 (11th 

Cir. 1997) (per curiam) (same).

Pierce, 

federal supervised release trumps state probation rules, but 

without questioning that earlier holding, Peebles now promotes 

individualized state sentencing calculations over federal 

sentencing policy. This approach can only result in complex, 

arbitrary, pick-and-choose distinctions. To avoid this pitfall, 

courts have two choices: rewrite the ACA’s statutory command of 

“like punishment” to read “identical punishment” or recognize 

that “like punishment” contemplates only that federal sentencing 

policy applies within the state’s generic maximum and minimum 

sentence range. Our case law correctly selects the latter 

approach, and there is no reason to revisit that choice.

D.

Nor is our circuit an outlier. Our sister circuits also 

recognize that federal -- rather than state -- sentencing 

procedures apply when calculating individual ACA sentences. 

See, e.g., U.S. v. Calbat, 266 F.3d 358, 362 (5th Cir. 2001) 

(“Consequently, state law fixes the range of punishment, but the 

Sentencing Guidelines determine the actual sentence within that 
19

range.”) (internal citation omitted); U.S. v. Queensborough, 227 

F.3d 149, 160 (3d Cir. 2000) (same); U.S. v. Gaskell, 134 F.3d 

1039, 1043, 45 (11th Cir. 1998) (same); U.S. v. Leake, 908 F.2d 

550, 552 (9th Cir. 1990) (same); U.S. v. Garcia, 893 F.2d 250, 

251-52 (10th Cir. 1989) (same); see also U.S. v. Norquay, 905 

F.2d 1157, 1161-62 (8th Cir. 1990) (same in interpreting 

statutory provision similar to ACA). While many of the 

decisions from this and other circuits predate United States v. 

Booker, 543 U.S. 220 (2005), and its progeny, I do not think 

their basic teaching about federal sentencing practices is 

rendered in any way inapplicable by the fact that the Guidelines 

are presently advisory. See Gall v. U.S.

In addition to the widespread recognition that federal 

sentencing procedures apply to ACA crimes, other circuits also 

have taken the same approach as this court in declining to 

require adherence to state probation rules. 

, 552 U.S. 38 (2007). 

If anything, the greater discretion now afforded district courts 

in sentencing would seem inconsistent with the strict handcuffs 

that Peebles would place upon them.

See Gaskell, 134 

F.3d at 1043 (citing and discussing Second, Ninth, and Tenth 

Circuit decisions). As the Ninth Circuit explained long ago, 

“[t]o hold otherwise would be to have two classes of prisoners 

serving in the federal prisons: Assimilative Crimes Act 

prisoners and all other federal prisoners. That situation would 
20

be disruptive to correctional administration, and we do not 

think Congress intended this result.” U.S. v. Smith, 574 F.2d 

988, 992 (9th Cir. 1978). The two-tiered system for which 

Peebles argues cannot be what Congress intended, and “[e]fforts 

to duplicate every last nuance of the sentence that would be 

imposed in state court has never been required.” Garcia, 893 

F.2d at 254.

III.

Peebles’s error is further exacerbated by his 

misapprehension of the interaction between the ACA, 18 U.S.C. 

§ 13, the assimilated crime of aggravated speeding to elude 

arrest, N.C. Gen. Stat. § 20-141.5, and the North Carolina 

structured sentencing statute, N.C. Gen. Stat. § 15A-1340.17. 

Peebles claims his federal sentence should be limited to the 

individual sentence a state judge would have imposed on him. 

But the ACA does not incorporate North Carolina structured 

sentencing. Instead it incorporates substantive offenses that 

“would be punishable if committed . . . within the jurisdiction 

of the State.” 18 U.S.C. § 13(a).

As the majority acknowledges, the typical federal criminal 

statute specifies a maximum and a minimum penalty as part of the 

statutory definition of the offense. When an assimilated 

statute is structured similarly, the maximum and minimum ranges 
21

apply, but federal courts are free to use federal sentencing 

practices within those boundaries. See, e.g., Queensborough

North Carolina law operates identically, though with less 

clarity than is typical. The substantive law merely defines 

Peebles’s aggravated speeding offense as a “Class H felony.” 

N.C. Gen. Stat. § 20-141.5(b). The authorized sentence range is 

then codified separately in tabular form. N.C. Gen. Stat. 

§ 15A-1340.17(c) and (d). That table indicates that a Class H 

felony can be punished by four to thirty months. See N.C. Gen. 

Stat. § 15A-1340.17(c) and (d). North Carolina courts recognize 

that this range establishes the authorized maximum sentence, 

regardless of specific defendants’ individual characteristics. 

, 

227 F.3d at 160 (twenty year federal sentence valid when 

assimilated Virgin Islands law authorized ten years to life). 

In such a situation, whatever sentencing guidance the state may 

establish elsewhere is irrelevant for federal assimilation.

See State v. Dewberry, 600 S.E.2d 866, 870 (N.C. App. 2004) 

(“The maximum sentence for a Class H felony is 30 months.”); 

State v. Bernard, No. COA07-1289, 2008 WL 1948022, at *6 (N.C. 

App. May 6, 2008) (defendant considering self-representation 

warned that “speeding to elude is a Class H felony carrying a 

maximum punishment of 30 months.”). See also U.S. v. Jones, 195 

F.3d 205, 207 (4th Cir. 1999) (“viewing the class maximum as the 
22

statutory maximum for the crime appears to accord . . . with the 

general practice in North Carolina courts”).

North Carolina also chose to codify its state sentencing 

procedures in the same statute. This decision, however, does 

not alter the fact that the resultant law performs two 

independent and severable tasks. The first is to provide a 

generic reference table that categorizes the range of authorized 

penalties by felony class, in the case of a Class H felony up to 

thirty months. In addition to this initial function, the 

statute serves a secondary purpose of laying out the state’s 

sentencing regime. While it is undisputed that Peebles would 

have received a sentence between five and eight months if 

sentenced under state sentencing guidelines in state court, 

federal courts are not required to adopt the identical local 

procedures in sentencing ACA defendants. The Class H felony 

punishment of up to thirty months is what is assimilated by the 

ACA, not every particular of state sentencing rules. See

Garcia, 893 F.2d at 254.2

 2 Nor does the majority’s contrary view do criminal 

defendants any favors. In many instances state sentencing law 

may provide for a harsher punishment than provided by federal 

sentencing policies. For instance, North Carolina sentencing 

procedures typically give judges unfettered discretion to decide 

whether sentences imposed for multiple counts should run 

concurrently or consecutively. See N.C. Gen. Stat. § 15A-1354. 

In contrast, federal policy generally favors concurrent 

sentences, albeit with some exceptions. See, e.g., U.S.S.G. 

(Continued)
23

In short, Peebles asks us to create a North Carolina 

anomaly that conflicts with the precedent of this and other 

circuits. Under the ACA, Peebles is only entitled to “like 

punishment,” and that is precisely what the district court’s 

sentence provided. By focusing on the individualized elements 

of state sentencing rules, appellant disregards the ACA’s 

century-old “like punishment” requirement in favor of the “same 

punishment” phrasing rejected by Congress in 1909. The ACA 

“fills in gaps in federal criminal law.” Garcia, 893 F.2d at 

253 (citation omitted). It is not intended to displace the 

comprehensive federal sentencing practice with individualized 

state sentencing procedures. Pierce

 

§ 5G1.2 (guideline for sentencing on multiple counts of 

conviction).

, 75 F.3d at 176 (“a federal 

court . . . will not assimilate a state sentencing provision 

that conflicts with federal sentencing policy.”). And it 

certainly is not intended to impair the basic prerogative of the 

United States to ensure a modicum of public safety on federal 

lands and parkways. Other courts have been able to accommodate 

state sentencing ranges and this core federal concern, and I 

respectfully dissent from the failure to follow their example.