*The HONORABLE ANDREW W. BOGUE, United States District

Judge for the District of South Dakota, sitting by

designation.

___________

 No. 97-1261 

___________

United States of America, *

*

Plaintiff - Appellee *

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

Dwaine Julius Engelhorn, *

*

Defendant - Appellant *

___________

 Submitted: June 10, 1997

 Filed: July 30, 1997

___________

Before MURPHY and HEANEY, Circuit Judges, and BOGUE, District

*

Judge.

___________

BOGUE, Senior District Judge.

On October 26, 1996, Dwaine Julius Engelhorn pled guilty to

attempted indecent exposure on an Indian reservation. Engelhorn

was charged under the Assimilative Crimes Act because his crime

occurred within Indian Country and his victim was an Indian. 18
The Honorable Lawrence L. Piersol, United States District 1

Judge, District of South Dakota.

-2-

U.S.C. § § 13 and 1152. Because Engelhorn had three prior sexual

contact convictions, the crime he attempted to commit would have

been punishable as a class 6 felony under South Dakota law pursuant

to S.D.C.L. § 22-24-1. Section 22-24-1 carries with it a maximum

sentence of two years in prison, a $2,000 fine, or both. S.D.C.L.

§ 22-6-1(8). Under S.D.C.L. § 22-4-1(2), however, “if the

attempted crime is punishable by imprisonment in the state

penitentiary for any time less than five years, the person guilty

of such attempt is punishable by imprisonment in a county jail for

not more than one year.” Thus, the maximum term of incarceration

the district court could impose on Engelhorn under state law was

1

one year. 

At the sentencing hearing, the defendant objected to any

imposition of a period of supervised release in the event the court

imposed the maximum custodial sentence of one year. The district

court, however, imposed a custodial sentence of 12 months,

overruled the defendant’s objection, and included a one year period

of supervised release in the sentence pursuant to 18 U.S.C. §

3583(a). 

On appeal, Engelhorn argues that imposition of the period of

supervised release violates the “like punishment” provision of the

Assimilative Crimes Act (ACA) 18 U.S.C. § 13, and is therefore

impermissible. He argues that if he had been sentenced to the

maximum term possible by a South Dakota court, he would have been

ineligible for parole or probation after serving that sentence and

would thereafter be a free man. Imposition of the one year

supervised release, he maintains, far exceeds the maximum sentence

he could receive in state court, is not a “like punishment” when
-3-

compared to state law, and therefore violates the ACA. We

disagree. 

I.

Our review of the district court’s application of the

Sentencing Guidelines is de novo. United States v. Schaffer, 110

F.3d 530 (8 Cir. 1997). th

Congress enacted the Assimilative Crimes Act for the purpose

of filling the voids in the criminal law applicable to federal

enclaves created by the failure of Congress to pass specific

criminal statutes. United States v. Butler, 541 F.2d 730, 733-34

(8 Cir. 1976). The Act provides that in the absence of a

th

governing federal statute, a person who commits an act or omission

on a federal enclave which act or omission is punishable under

state law “shall be guilty of a like offense and subject to a like

punishment.” 18 U.S.C. § 13(a). The ACA does not contemplate

selective assimilation of state criminal laws. The federal courts,

however, have recognized an exception to this general rule where

there is a need to promote federal policy. See, United States v.

Teran, 98 F.3d 831 (5 Cir. 1996); United States v. Reyes, 48 F.3d th

435 (9 Cir. 1995); and United States v. Kelly, 989 F.2d 162 (4 th th

Cir. 1993). Thus, although a federal prisoner is convicted and

sentenced in accordance with the ACA, he is still subject to

federal correctional policies. See, United States v. Harris, 27

F.3d 111 (4 Cir. 1994). th

Initially, it is important to note that if the defendant had

been convicted of a federal misdemeanor and sentenced to a maximum

penalty of one year incarceration, the district court properly

could have imposed an additional one year period of supervised
-4-

release. 18 U.S.C. § 3583. That is, the total time involved in a

term of imprisonment and supervised release may exceed the maximum

term of incarceration authorized by the substantive federal statute

under which a defendant is convicted. United States v. Watkins, 14

F.3d 414 (8 Cir. 1994); See also, United States v. Purvis, 940

th

F.2d 1276, 1279 (9 Cir. 1991)(18 U.S.C. § 3583 authorizes the

th

revocation of supervised release even where the resulting

incarceration, when combined with the period of time already served

for a misdemeanor offense, will exceed the maximum incarceration

permissible under the substantive statute). Section 3583 reads in

relevant part: “The court, in imposing a sentence of a term of

imprisonment for a felony or misdemeanor, may include as a part of

the sentence a requirement that the defendant be placed on a term

of supervised release, after imprisonment . . . .” 18 U.S.C. §

3583(a). Authorizing supervised release “as part of the sentence,”

as opposed to “as part of the incarceration,” implies that a term

of supervised release is to be imposed in addition to any

incarceration authorized by a particular substantive criminal

statute. Watkins, 14 F.3d at 415. Such a result furthers Congress’

intent, in abolishing the federal parole system, to make the period

of allowable supervision that a judge could impose, independent of

the amount of time the defendant has spent in jail. See, United

States v. Montenegro-Rojo, 908 F.2d 425 (9 Cir. 1990). It is the th

federal policy to give judges the power to make an independent

determination of whether a particular defendant needs supervision

after his incarceration. Id. at 433. This power is to be

exercised in furtherance of the overall purpose of supervised

release - to ease the defendant’s transition into the community or

to provide rehabilitation to a defendant who still needs

supervision and training programs after release. United States v.

Love, 19 F.3d 415, 417 [n.4] (8 Cir. 1996)(citing S.Rep. No. 225, th
-5-

98 Cong., 2d Sess. 124, reprinted in 1984 U.S.C.C.A.N. 3182,

th

3307). 

We must here decide whether the same policy applies where the

defendant is charged under the Assimilative Crimes Act yet the

substantive state law under which he was convicted provides for no

period of supervised release. This issue is one of first

impression in our circuit and we are guided by the fourth circuit’s

opinion in United States v. Pierce, 75 F.3d 173 (4 Cir. 1996) th

II.

In Pierce the defendant was arrested and charged under the ACA

with driving while impaired on a United States Military Base in

North Carolina. He pled guilty to violating the applicable North

Carolina statute prohibiting impaired driving, and was sentenced to

one year probation. After the defendant violated his probation,

the federal magistrate judge revoked his probation and sentenced

him to 30 days incarceration followed by one year of supervised

release. Had the defendant been sentenced in state court, however,

the maximum punishment he could have received following revocation

of his probation was a 60-day term of incarceration. 

The defendant argued that because North Carolina law had no

provision for imposition of supervised release, he was not

subjected to “like punishment” as required by the ACA. North

Carolina law, however, provided for parole eligibility at any time

upon being incarcerated unless the sentence required a mandatory

minimum term of imprisonment. In affirming the defendant’s

sentence, the Fourth Circuit Court of Appeals reasoned that because

parole under state law, and supervised release under federal law,

serve similar functions of guided re-entry into society following

a period of incarceration, supervised release is “like” parole for
-6-

purposes of the ACA. Pierce, 75 F.3d at 177. Thus, the Pierce

court concluded, the defendant’s sentence of incarceration plus a

term of supervised release did not violate the ACA’s requirement

that he be subject to “like punishment.” Id. 

In applying the ACA, federal courts have consistently held, as

did Pierce, that the “like punishment” provision of the ACA

requires only that a similar sentence be imposed, and not

necessarily an identical one. Federal courts are not completely

bound by state sentencing requirements. See, e.g., Reyes, 48 F.3d

at 438 (federal and state sentences need not be identical under the

ACA); Harris, 27 F.3d at 115 (“like punishment” does not encompass

every incident of a state’s sentencing policy); United States v.

Marmolejo, 915 F.2d 981, 984 (5 Cir. 1990)(“like” implies

th

similarity, not identity); United States v. Garcia, 893 F.2d 250,

254 (10 Cir. 1989)(“Efforts to duplicate every last nuance that

th

would be imposed in state court has never been required.”). For

purposes of the ACA, therefore, parole and probation under state

law are “like” supervised release under federal law if they serve

similar functions and achieve similar goals. The court in

Marmolejo held, for example, since parole and supervised release

both occur following a term of imprisonment, involve government

supervision, and serve to facilitate a prisoner’s transition into

society, they are “like” for purposes of the ACA. Marmolejo, 915

F.2d at 985. Similarly, in Reyes the court found that because

supervised release and probation occur after imprisonment, and both

involve governmental supervision after release, they are similar

enough to constitute “like punishment.” Reyes, 48 F.3d at 438. 

Although South Dakota law has no provision for supervised

release following one’s incarceration, it does provide for parole

or probationary release prior to the expiration of a defendant’s
-7-

maximum potential term of incarceration for certain offenses. See,

S.D.C.L. § § 24-15-1.1 (parole); and 23A-27-12 (probation).

Probation is an option available to state judges in fashioning

appropriate sentences for defendants convicted of a misdemeanor

offense under South Dakota law. S.D.C.L. §§ 23A-27-12 and 23A-27-

18.1. Similar to a supervised release under the federal system,

probation under South Dakota law is discretionary and conditional,

involves a period of government supervision, and a probationer can

be re-incarcerated upon revocation of his probation. S.D.C.L. §

23A-27-19.1; State v. Oban, 372 N.W.2d 125 (S.D. 1985); State v.

Elder, 95 N.W.2d 592 (S.D. 1959). Moreover, probation is imposed

“with the purpose of achieving the goal of rehabilitation, the

accomplishment of which will serve to protect the public during the

period of probation, as well as thereafter.” State v. Cummings, 262

N.W.2d 56, 61 (S.D. 1978); S.D.C.L. § 24-15-11. 

If Engelhorn had been convicted and sentenced for the same

misdemeanor offense in a South Dakota state court, he could have

faced a sentence comprised of a period of incarceration, followed

by a period of probation. S.D.C.L. § 23A-27-18.1. Because

probation, under South Dakota law, can follow a term of

incarceration, involves government supervision, and serves

society’s goal of rehabilitation, the sentence imposed by the

district court--a period of incarceration plus a term of supervised

release--was like a punishment the defendant could have faced in a

state court. In this case, therefore, supervised release is a

“like punishment” for ACA purposes. See, Pierce, 75 F.3d at 177.

III.

Engelhorn maintains that imposition of the one year supervised

release in addition to the term of incarceration far exceeds the
-8-

maximum sentence he could receive in state court, and in that

manner violates the “like punishment” requirement of the ACA. In

Pierce, the defendant made a similar argument, maintaining that the

supervised release imposed upon him was impermissible because the

total sentence imposed exceeded the maximum term of imprisonment

authorized by North Carolina law for the underlying offense. In

rejecting this argument, the court reiterated that in the context

of defendants convicted of violating federal criminal statutes,

supervised release is not considered part of the incarceration

portion of a sentence, and is therefore not limited by the

statutory maximum term of incarceration. Id. at 178. Moreover, the

court found, a federal court will not adopt provisions of state law

that conflict with federal sentencing policy. Id. The court

concluded that “[s]ince under federal policy supervised release is

considered distinct from incarceration and available in addition to

any term of imprisonment, adopting Pierce’s argument would create

an ACA sentencing rule that conflicts with federal sentencing

policy regarding the imposition of supervised release.” Id. The

court refused to create a sentencing exception for ACA defendants.

We agree and now hold, although the term of incarceration imposed

upon a defendant convicted under the ACA may not exceed that

provided by state substantive law, the total sentence imposed--

consisting of a term of incarceration followed by a period of

supervised release--may exceed the maximum term of incarceration

provided for by state law. See, Pierce, 75 F.3d at 178. 

IV.

Engelhorn argues the Pierce case is legally and factually

distinguishable from this case, however, in that the defendant in

Pierce was sentenced to less than the maximum possible term of

incarceration under state law. Thus, parole would have been
-9-

available to that defendant under state law, whereas in this case,

Engelhorn would not have been eligible for any parole or probation

under South Dakota law because he was sentenced to a maximum one

year term of incarceration. Whether supervised release is a “like

punishment,” he argues, depends upon whether a similar punishment

is actually available under state law, and not precluded by

imposition of the maximum possible term of incarceration. As

noted, however, the district court may impose supervised release

upon an ACA defendant in addition to a term of incarceration, the

combination of which could result in a sentence in excess of the

maximum period of incarceration allowed by state law. Engelhorn

would have us create an exception to this rule for ACA defendants

sentenced to the maximum term of incarceration under the

assimilated state law. This we cannot do.

 

In abolishing the federal parole system, Congress intended to

make the length of one’s post-incarceration supervision dependent

solely upon his need for supervision, rather than upon the length

of his original prison term. Montenegro-Rojo, 908 F.3d at 432.

Under the old system, the length of time a defendant could be

supervised on parole following imprisonment, and the length of time

for which he could be re-incarcerated following parole revocation,

were dependant on the length of his original term of imprisonment.

Id. (citing, S.Rep. No. 225, 98 Cong., 2d Sess. 122-24, reprinted th

in 1984 U.S.Code Cong. & Admin.News 3182, 3305-07). A parolee

remained under the control of the Attorney General until the

expiration of the maximum term of imprisonment to which he was

sentenced. Thus, the smaller the percentage of his term of

imprisonment a prisoner actually spent in prison, the longer his

period of parole supervision would be. Id. at 433. Situations

arose where those worse-behaved prisoners who served at or near the

maximum term of prison and who were most in need of post-
Section 3551(a) reads in relevant part: 2

Except as otherwise provided, 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 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 the

circumstances of the case.

-10-

incarceration supervision, would get very little supervision

because they were ineligible for early release on parole. Id. 

Under the new supervised release system, the length of postincarceration supervision is dependent solely on the defendant’s

need for supervision after his release, regardless of the length of

time of his prison term. “[T]he question whether a defendant will

be supervised following his term of imprisonment is dependant on

whether the judge concludes that he needs supervision . . . .” Id.

In making this determination the sentencing court must consider, in

part, the nature and circumstances of the offense, the history and

characteristics of the defendant, and the need for deterrence,

rehabilitation, and public safety. See, 18 U.S.C. §§ 5383(c) and

3553. 

The Sentencing Guidelines, including the provisions for

supervised release, were made applicable to the ACA in 1990 by

congressional amendment to 18 U.S.C. § 3551(a). See, Reyes, 48

2

F.3d at 437. It is Congress’ intent, therefore, to give judges the

discretion to impose a maximum term of incarceration plus a period

of supervised release, upon those defendants, including ACA

defendants, whom the judges deem appropriate candidates for postincarceration supervision. Moreover, this discretion is to be

exercised upon considerations independent of the length of prison

time, including the maximum term, imposed upon or served by the
The Facts of this case clearly demonstrate why sentencing 3

courts need the option of imposing supervised release upon ACA

defendants following a term of incarceration. Engelhorn had three

convictions for sexual abuse of children prior to his conviction in

this case. Each subsequent offense, including the offense in this

case, occurred within 13 months of his release from prison. 

Supervised release is clearly necessary to provide Engelhorn the

rehabilitation needed to re-integrate him into society and deter

him from further criminal conduct.

-11-

defendant. Engelhorn’s position would make the availability of

supervised release contingent upon imposition of less than the

maximum possible term of incarceration. If a federal court could

not impose supervised release after determining an appropriate

sentence of imprisonment, that court might be unable to impose what

it determined to be an appropriate length of imprisonment and a

period of supervised release upon individuals it determined to be

in need of post-incarceration supervision, even though the crime

was committed within an area of federal jurisdiction. Engelhorn’s 3

position is contrary to the federal correctional policies and must

therefore be rejected. See, United States v. Burke, 113 F.3d 211

(11 Cir. 1997)(per curiam)(affirming imposition of one year

th

supervised release upon ACA defendant sentenced to maximum one year

imprisonment for state misdemeanor violation). Affirmed. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.