*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, Distric t * Judge.

___________ BOGUE, Senior District Judge.

On October 26, 1996, Dwaine Julius Engelhorn pled guilty t o attemp ted indecent exposure on an Indian reservation. Engelhor n
was ch arged under the Assimilative Crimes Act because his crim e occurred within Indian Country and his victim was an Indian. 18The 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
con tact convictions, the crime he attempted to commit would hav e been punishable as a class 6 felony under South Dakota law p ursuant 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. § 2 2-6-1(8). Under S.D.C.L. § 22-4-1(2), however, “if th e at tempted crime is punishable by imprisonment in the stat e 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 th e district court could impose on Engelhorn under state law wa s 1 one year.

At the sentencing hearing, the defendant objected to an y imposition of a period of supervised release in the event th e court imposed the maximum custodial sentence of one year. The district
co urt, 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 th e “like punishment” provision of the Assimilative Crimes Act (ACA) 18 U.S.C. § 13, and is therefor e im permissible. He argues that if he had been sentenced to th e maximum term possible by a South Dakota court, he would have been ineligible for parole or proba tion after serving that sentence and woul d thereafter be a free man. Imposition of the one yea r supervised release, he maintai ns, 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. W e disagree.

I.

Ou r review of the district court’s application of th e Sen tencing Guidelines is de novo. United States v. Schaffer , 11 0 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 federa l enclav es created by the failure of Congress to pass specifi c cri minal statutes. United States v. Butler , 541 F.2d 730, 733-3 4 (8 Cir. 1976). The Act provides that in the absence of a th governing federal statute, a p erson who commits an act or omission
ona federal enclave which act or omission is punishable unde r 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 contemplat e selective assimilation of state criminal laws. The federal courts, how ever, have recognized an exception to this general rule wher e 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 an d sentenced in accordance with the ACA, he is still subject t o fede ral correctional policies. See , United States v. Harris , 2 7 F.3d 111 (4 Cir. 1994). th
Initially, it is important to note that if the defendant had been convicted of a federal mi sdemeanor and sentenced to a maximum pe naltyof one year incarceration, the district court properl y 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 super vised 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 , 94 0 th F.2d 1276, 1279 (9 Cir. 1991)(18 U.S.C. § 3583 authorizes th e th
re vocationof supervised release even where the resultin g incarceration, when combined with the period of time already served for a misdemeanor offense, will exceed the maximum incarceratio n permissible under the substant ive statute). Section 3583 reads in
re levant part: “The court, in imposing a sentence of a term o f imprisonment for a felony or m isdemeanor, 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 sen tence,” as opposed to “as part of the incarceration,” implies that a term of supervised release is to be imposed in addition to an y incarcerationauthorized by a particular substantive crimina l statute. Watkins , 14 F.3d at 415. Such a result furthers Co ngress’ intent, in abolishing the federal parole system, to make the period of allowable supervision that a judge could impose, independent of the a mount of time the defendant has spent in jail. See , Unite d 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 independen t determination of whether a particular defendant needs supervision after his incarceration. Id

. at 433. This power is to b e exercised in furtherance of the overall purpose of supervise d release - to ease the defendan t’s transition into the community or to pro vide rehabilitation to a defendant who still need s supervision and training programs after release. United States v. Love , 19 F.3d 415, 417 [n.4] (8 C ir. 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 th e same policy applies where the defendant is charged under the Assimilative Crimes Act yet th e substantive state law under wh ich he was convicted provides for no period of supervised release. This issue is one of firs t impression in our circuit and we are guided by the fourth ci rcuit’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 A CA withdriving while impaired on a United States Military Base i n North Carolina. He pled guilty to violating the applicable North Carolina statute prohibiting impaired driving, and was sente nced to
one year probation. After the defendant violated his probation , the fe deral magistrate judge revoked his probation and sentence d himto 30 days incarceration followed by one year of supervise d release. Had the defendant been sentenced in state court, h owever, the maximum punishment he coul d have received following revocation of his probation was a 60-day term of incarceration.

The defendant argued that because North Carolina law had n o pr ovisionfor imposition of supervised release, he was no t subjected to “like punishment” as required by the ACA. Nort h Carolina law, however, provide d for parole eligibility at any time upon b eing incarcerated unless the sentence required a mandator y mini mumterm 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, sup ervised release is “like” parole for-6-

purpos es of the ACA. Pierce , 75 F.3d at 177. Thus, the Pierc e court concluded, the defendant’s sentence of incarceration plus a ter mof supervised release did not violate the ACA’s requiremen t 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 AC A requir es only that a similar sentence be imposed, and no t
nec essarilyan identical one. Federal courts are not completel y bound by state sentencing requirements. See , e.g. , Reyes , 48 F.3d at 438 (federal and state sentences need not be identical un der the ACA); Harris , 27 F.3d at 115 ( “like punishment” does not encompass
eve ryincident of a state’s sentencing policy); United States v

. Marm olejo , 915 F.2d 981, 984 (5 Cir. 1990)(“like” implie s th similarity, not identity); Un ited States v. Garcia , 893 F.2d 250, 254 (1 0 Cir. 1989)(“Efforts to duplicate every last nuance tha t

th would be imposed in state court has never been required.”). Fo r pur poses of the ACA, therefore, parole and probation under stat e law are “like” supervised release under federal law if they serve sim ilar functions and achieve similar goals. The court i n Marmol ejo held, for example, since parole and supervised releas e both occur following a term of imprisonment, involve governmen t supervision, and serve to facilitate a prisoner’s transition into society, they are “like” for purposes of the ACA. Marmolejo , 91 5 F. 2d at 985. Similarly, in Reyes the court found that becaus e supervised release and probation occur after imprisonment, a nd both in volve governmental supervision after release, they are simila r enough to constitute “like punishment.” Reyes , 48 F.3d at 438.

Al thoughSouth Dakota law has no provision for supervise d 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 inca rceration for certain offenses. See , S.D.C .L. § § 24-15-1.1 (parole); and23A-27-12 (probation)

. Probationis an option available to state judges in fashionin g appr opriate sentences for defendants convicted of a misdemeano r 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 l aw is discretionary and conditional, involves a period of governmen t supervision, and a probationer can be r e-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 “withthe purpose of achieving the goal of rehabilitation, th e accomplishment of which will serve to protect the public dur ing the period of probation, as well as thereafter.” State v. Cummin gs , 262 N.W.2d 56, 61 (S.D. 1978); S.D.C.L. § 24-15-11.

If Eng elhorn had been convicted and sentenced for the sam e misdemeanor offense in a South Dakota state court, he could hav e faced a sentence comprised of a period of incarceration, followed by a period of probation. S.D.C.L. § 23A-27-18.1. Becaus e pro bation, under South Dakota law, can follow a term o f incarceration, involves government supervision, and serve s society’s goal of rehabilitation, the sentence imposed by th e district court--a period of incarceration plus a term of sup ervised 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 supervis ed release in addition to the term of incarceration far exceeds the-8-

maximumsentence he could receive in state court, and in tha t manner violates the “like punishment” requirement of the ACA. In Pierce , the defendant made a similar argument, maintaining t hat the supervised release imposed upon him was impermissible because the total sentence imposed exceeded the maximum term of imprisonmen t authorized by North Carolina law for the underlying offense. I n rejecting this argument, the court reiterated that in the context of d efendants convicted of violating federal criminal statutes , su pervised release is not considered part of the incarceratio n portionof a sentence, and is therefore not limited by th e statutory maximum term of incarceration. Id . at 178. Moreov er, the court found, a federal court will not adopt provisions of st ate law that c onflict with federal sentencing policy. Id . The cour t concluded that “[s]ince under federal policy supervised release is considered distinct from incarceration and available in addi tion to any term of imprisonment, adopting Pierce’s argument would create
anACA sentencing rule that conflicts with federal sentencin g pol icyregarding the imposition of supervised release.” Id . Th e court refused to create a sent encing exception for ACA defendants. We agree and now hold, although the term of incarceration imposed upona defendant convicted under the ACA may not exceed tha t prov ided by state substantive law, the total sentence imposed-

- consisting of a term of incarceration followed by a period o f
su pervised release--may exceed the maximum term of incarceratio n provided for by state law. See , Pierce , 75 F.3d at 178.

IV.

En gelhornargues the Pierce case is legally and factuall y distinguishable from this case, however, in that the defendant in Pierce was sentenced to less than the maximum possible term o f incarceration under state law. Thus, parole would have been-9-

available to that defendant un der state law, whereas in this case, Engelhorn would not have been eligible for any parole or probation under So uth Dakota law because he was sentenced to a maximum on e 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 imp ositionof the maximum possible term of incarceration. A s noted, however, the district court may impose supervised releas e upon an ACA defendant in addition to a term of incarceration, the combinat ionof which could result in a sentence in excess of th e
max imumperiod of incarceration allowed by state law. Engelhor n would have us create an exception to this rule for ACA defendants senten ced to the maximum term of incarceration under th e assimilated state law. This we cannot do.
In abolishing the federal paro le 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 b e supervised on parole following imprisonment, and the length of time for which he could be re-incar cerated following parole revocation, were dependant on the length o f his original term of imprisonment. Id . (citing, S.Rep. No. 225, 98 C ong., 2d Sess. 122-24, reprinted th in1984 U.S.Code Cong. & Admin.News 3182, 3305-07). A parole e remain ed under the control of the Attorney General until th e expirationof the maximum term of imprisonment to which he wa s sentenced. Thus, the smaller the percentage of his term o f imp risonment a prisoner actually spent in prison, the longer hi s period of parole supervision would be. Id . at 433. Situation s arose where those worse-behaved prisoners who served at or n ear 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- incarcerationsupervision, would get very little supervisio n because they were ineligible for early release on parole. Id

.Under the new supervised release system, the length of postin carcerationsupervision is dependent solely on the defendant’ s need for supervision after his release, regardless of the le ngth of time of his prison term. “[T] he question whether a defendant will be supervised following his term of imprisonment is dependant o n whether the judge concludes that he needs supervision . . . .” Id

. In making this determination the sentencing court must consi der, in part, the nature and circumsta nces of the offense, the history and ch aracteristics of the defendant, and the need for deterrence , reh abilitation, and public safety. See , 18 U.S.C. §§ 5383(c) an d 3553.

The Sentencing Guidelines, including the provisions fo r supervised release, were made applicable to the ACA in 1990 by congressional amendment to 18 U.S.C. § 3551(a). See , Reyes , 4 8 2 F.3d at 437. It is Congress’ intent, therefore, to give jud ges the discretion to impose a maximum term of incarceration plus a period of su pervised release, upon those defendants, including AC Adefendants, whom the judges deem appropriate candidates for postin carcerationsupervision. Moreover, this discretion is to b e exercised upon considerations independent of the length of prison time, including the maximum term, imposed upon or served by theThe 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- defe ndant. Engelhorn’s position would make the availability o f
su pervised release contingent upon imposition of less than th e maximum possible term of incarceration. If a federal court could not im pose supervised release after determining an appropriat e sentence of imprisonment, that court might be unable to impo se what it determined to be an appropriate length of imprisonment and a period of supervised release upon individuals it determined to be in nee d of post-incarceration supervision, even though the crim e was committed within an area of federal jurisdic tion. Engelhorn’s 3 position is contrary to the fe deral correctional policies and must therefore be rejected. See , United States v. Burke , 113 F.3d 21 1 (11 Cir. 1997)(per curiam)(affirming imposition of one yea r t h supervised release upon ACA defendant sentenced to maximum o ne year imprisonment for state misdemeanor violation). Affirmed.

A true copy.

Attest:

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