* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-2102

v. D. New Mexico TOMMY R. NELSON,

Defendant - Appellant. (D.C. No. CR-97-77-JP)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Following a bench trial, Tommy R. Nelson was convic ted on three counts of residential burglary which occurred on the Navaj o Indian Reservation. He now-2-

appeals the sentence imposed, contending that the d istrict court erred because it assigned the sentencing stage of his case to a subs titute judge who had not presided over his trial, and because the substitut e judge who actually imposed sentence failed to read the trial transcript or to certify familiarity with the case. He also contends that the court erred by applying f ederal sentencing guidelines instead of New Mexico sentencing provisions. We af firm.

BACKGROUND On February 5, 1997, a federal grand jury returned an indictment charging Nelson with three counts of residential burglary inviolation of N.M. Stat. Ann. § 30-16-3(A) (Michie Repl. Pamp. 1994); the Assimil ative Crimes Act, 18 U.S.C. § 13; and the Indian Major Crimes Act, 18 U.S.C. § 1153. The indictment also charged him with three counts of larceny in excess of $2500, in violation of 18 U.S.C. §§ 13 and 661. The case was assigned to Uni ted States District Judge James A. Parker. Nelson waived his right to a jurytrial, following which the court notified the parties that the case would be t ried by a visiting judge from the Fifth Circuit. A one-and-a-half-day trial was held on November 17-18, 1997, before the Honorable Peter Beer, Senior United Stat es District Judge from the1 We GRANT the government’s unopposed motion to suppl ement the record

on appeal with a copy of the Order which designated and assigned Judge Beer to perform judicial duties in the District of New Mexi co. -3- Eastern District of Louisiana. 1 Judge Beer acquitted Nelson of the three larceny counts, but found him guilty of the three counts of residential burglary. Sentencing was set for March 11, 1998, before Judge Parker. Nelson filed a motion requesting that sentence be imposed and ru lings on post trial motions be made by Judge Beer, who had presided at trial. He also filed a motion objecting to the application of the sentencing guidelines, cl aiming that the crimes for which he was convicted were state rather than federal cri mes. On March 11, 1998, Judge Parker orally denied Nelson’s post trial moti ons, and he sentenced Nelson to seventy-two months’ imprisonment.

DISCUSSION As his first two claims of error, Nelson contends that Fed. R. Crim. P. 25(b) was violated when Judge Parker was reassignedto the case for sentencing purposes; and he further contends that Judge Parkerhad insufficient familiarity to impose a sentence. In particular, Nelson complains that Judge Parker had not read the transcript of the trial. We review a subs titute judge’s decision to impose sentence pursuant to Rule 25(b) for abuse of discre tion. See United States v. Spinney , 795 F.2d 1410, 1413-14 (9th Cir. 1986); United St ates v. Whitfield , 8742Fed. R. Crim. P. 25(b) provides as follows: After Verdict or Finding of Guilt . If by reason of absence, death, sickness or other disability the judge befor e whom the defendant has been tried is unable to perform the d uties to be performed by the court after a verdict or finding o f guilt, any other judge regularly sitting in or assigned to the courtmay perform those duties; but if that judge is satisfied that a judge who did not preside at the trial cannot perform those duties or that itis appropriate for any other reason, that judge may grant a new trial.

3 According to the Advisory Committee Notes to the 19 66 Amendment, “[t]he words ‘from the district’ [were] deleted to permit the local judge to act in those situations where a judge who has been assigne d from within the district to try the case is, at the time for sentence, etc., ba ck at his regular place of holding court which may be several hundred miles from the p lace of trial.” Based on the Committee’s clear statement, we reject Nelson’s arg ument that the rule is not intended to operate in situations created by the te mporary assignments and designations of judges under 28 U.S.C. §§ 291 or 29 4, and the “artificial” absences created by the termination of those assign ments. -4- F.2d 591, 593 (8th Cir. 1989); United States v. Nie miec , 611 F.2d 1207, 1212 (7th Cir. 1980). Under Fed. R. Crim. P. 25(b), in the event of the a bsence of the judge before whom the defendant was tried, any judge regu larly sitting in the district may sentence the defendant. 2 The term “absence” is not qualified. However, th e Advisory Committee Notes to the 1966 Amendment make it clear that absence due to geographical distance is sufficient. 3 In this case, Judge Beer would have been required to travel hundreds of miles back from Loui siana in order to preside over the sentencing. Accordingly, we conclude that Judg e Parker did not abuse his discretion either when he denied Nelson’s motion fo r Judge Beer to preside over4Both the government and Nelson answered, “No.” How ever, we note that

the hearing transcript clearly indicates that Nelso n’s counsel believed that the court had read a transcript of the trial proceeding s. As we have concluded, in the circumstances of this straightforward case, such a reading was unnecessary, and, in any event, Nelson points to no portion of the tr anscript which might have been critical to, or which might have altered, the actua l sentencing decision. -5- all post-trial matters, or when he personally presi ded over the sentencing stage of Nelson’s case. Next, respecting Nelson’s claim that Judge Parker l acked sufficient familiarity to impose sentence, we note that this c ase was not complicated. While Nelson correctly points out that Judge Parker did n ot have access to the trial transcript at the time of sentencing, and that he f ailed to certify his familiarity, Rule 25(b) imposes no such requirement on the sente ncing judge. Rather, in imposing the sentence, Judge Parker could properly rely on the comprehensive presentence investigation report (“PSR”) which set forth the offense and the critical evidence adduced at trial, including the t rial court’s findings that the government had failed to prove that any personal pr operty was stolen. See Whitfield , 874 F.2d at 593. In this case, Judge Parker indi cated that he had fully reviewed the PSR and also that he had read all corr espondence which had been submitted. Additionally, Judge Parker specificallyasked the parties if there were any further written materials which he needed to re view. 4 Such a record indicates-6-

that Judge Parker possessed sufficient familiarity with the critical aspects of the

case. Moreover, the record demonstrates that Judge Parkerexercised informed discretion in imposing the sentence. Specifically, the judge set a sentence of seventy-two months, which is close to the seventy m onth minimum permitted under the sentencing guidelines, and he did not imp ose restitution for any of the alleged, but unproved, personal property loss claim s. See id. ; Spinney , 795 at 1414. Accordingly, we find no abuse of discretion. As his final claim on appeal, Nelson contends that the court improperly applied the sentencing guidelines. He argues that because the crimes of conviction are defined by New Mexico statute, he sh ould have been sentenced according to state rather than federal law. We rev iew de novo the district court’s application of the guidelines. United States v. Mc Clelland , 141 F.3d 967, 973 (10th Cir. 1998). As the government correctly responds, Nelson was co nvicted of federal crimes in a federal court under the Assimilative Cr imes Act, 18 U.S.C. § 13, and the Indian Major Crimes Act, 18 U.S.C. § 1153. Although the crimes of conviction were defined under state law, prosecutio n under the Assimilative Crimes Act is not intended to enforce state law, bu t to enforce federal law that assimilates a state statute. See United States v. Sain , 795 F.2d 888, 891 (10th Cir.5 On November 29, 1990, Congress amended 18 U.S.C. § 3551(a) so that the

Assimilative Crimes Act and the Indian Major Crimes Act are now expressly included in that section’s purview, and the sentenc ing guidelines are expressly applied to defendants convicted under those provisi ons. See United States v. Thomas , 68 F.3d 392, 394 (10th Cir. 1995); cf. United States v. Bear , 932 F.2d 1279, 1282 n.1 (9th Cir. 1990) (noting that its dec ision applied the law in effect at the time of sentencing and, hence, did not considerthe effect of the 1990 amendment to § 3551(a), by which “Congress has made the Guidelines applicable to those convicted pursuant to the Indian Major Cri mes Act”). -7- 1986). Moreover, we have previously held that the guidelines apply to cases brought under the Assimilative Crimes Act, providedthat “the sentence imposed may not exceed any maximum sentence and may not fal l below any mandatory minimum sentence that is required under the law of the state in which the crimes occur.” United States v. Garcia , 893 F.2d 250, 251-52 (10th Cir. 1989); accord United States v. Kaneakua , 105 F.3d 463, 466 (9th Cir. 1997); United States v. Coleman , 38 F.3d 856, 859 (7th Cir. 1994); see also 18 U.S.C. § 3551(a). 5 Accordingly, we conclude that the district court di d not err when it imposed sentence according to federal sentencing guidelines

. AFFIRMED. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge