### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-50436

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### C YNTHIA 

### L. M ARTINEZ



### , also known as Cynthia Lyda,

also known as Cynthia Lynn Hedum,



### Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

November 28, 2001

Before J ONES , S MITH

and D E M OSS

, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Cynthia Lyda, formerly Cynthia Martinez,

appeals a sentence of

t hirty-two years’

imprisonment under the A ssimilative Crimes

Act, 18 U.S.C. § 13 (“ACA”), which requires

the dist rict court to impose a punishment

“like” the ten-year maximum imposed under Texas’s concurrent sentencing requirements. 1

We agree that, under t he facts of this case, a

federal sentence more t han three times the

length of the senten ce Lyda would have

received under state law is not “like” the state

punishment. We vacate the judgment of

sentence and remand for resentencing to a

term of no greater than ten years.

1 The r e is federal jurisdiction for these crimes

because they were committed at Lackland Air

Force Base, a federal facility.2 I.

Lyda suffers from a psychiatric disorder

known as Munchausen’s Syndrome by Proxy,

as a consequence of which she has induced or

aggravated serious medical conditions in three

of her children 

### SS

Aaron, Daniel, and Jos e ph.

This abuse caused Aaron’s death, Daniel’s catastrophic brain damage, and Joseph’ s hospitalization.

On the recommend a tion of Joseph’s

treating physicians, the FBI began videotape

surveillance of Joseph’s hospital room

. Those

tapes revealed Lyda’s mistreatment of Joseph,

which led to this indictment, plea, and

sentence.

The sentencing court considered Lyda’s

abuse of all three children when departing

upward for Lyda’s cr iminal history and

extreme conduct. Aaro n, Daniel, and Joseph

had a common pattern of development:

Aaron was born

prematurely in 1988. As

he gr ew o lder, Lyda reported an increasing

number of apnea and seizure episodes. Aaron

lost weight and suffered from chronic vomiting

and diarrhea; doctors surgically inserted a

gastric tube to feed him. After extensive testing, doctors were unable to reach a definit ive

diagnosis , although they considered various

mitochondrial disorders; the hospital released

Aaron. In March 1990, Lyda called her

hu sband, David Martinez, at work and

reported that Aaron had stopped breathing.

When Martinez arrived, Aaron lay flat on his

back, wearing only a dia per, and Ly da sat

crying by his body. Martinez began CPR, but

the doctors reported that Aaron was brain

dead, and the parents ul t imately decided to

turn off the ventilator and allow him to die.

After the parents’ divorce in 1995, Martinez learned that Lyda had purchased

several bottles of Ipecac, which ind uces

vomiting. After exhuming Aaron’s body, a

forensic toxicologist analyzed Aaron’s ha ir and

found proof of Ipecac poisoning. The treating

physician, Dr. Saunder M. Bernes, testified

that he believed Aaron’s death was a homicide,

and the large fluctuations in his physical health

were more consistent with poisoning than with

a degenerative disease.

After Daniel’s premature birth, he

experienced a similar pattern of health

problems: mild developmental delay, seizures,

apnea, vomiting, feedi n g intolerance, and

gastrointestinal bleeding. Doctors were unabl e

t o iso late the cause of these symptoms. The

t reating physicians responded, progressively,

by inserting an NG tube into the stomach,

wrapping the top of the stomach to keep food

from coming out (fundoduplication), and

eventually performing a tracheostomy a n d a

colonoscopy. During Daniel’s final

h o spit alization in August of 1993, Lyda was

the only other person in the room during his

card iac arrest. She failed to alert medical

personnel un t il Daniel had reached an

advan ced stage of cardiac arrest. The arrest

reduced him to a vegetative state, and he

currently functions at the level of a one- or

two-month-old.

Lyda gave birth to Joseph seven months after Daniel’s cardiac arrest. After Joseph’s premature birth, he failed to gain weight, despite

clinical tests showing t hat he ingested food

normally. The failure to gain weight persisted

until he r eached the age of five and one-half

months, when his treati ng physicians hospitalized him. Over the course of several months,

doctors failed t o diagnose his illness, and the

government’s expert ruled out a mitochondrial

disorder (although a defense expert t estified3

that all three children

suffered from a

mitochondrial disorder).

The s urgeons performed a gastrostomy , a

fundodoplication, and a tracheostomy and inserted a central line. Joseph had difficulty receiving nutrition through the tub e, however,

because his stomach bloated at night. In midNovember, he suffered from “polymicrobial

sepsis,” or the presence of mixed n umbers of

bacter i a in his bloodstream. Four different

t ypes of fecal bacteria pol l uted the

bloodstream, and, at sentencing, exp erts

agreed that only the introduction of feces into

the intravenous line could have caused this

unusually severe sepsis.

After the sep sis, four treating physicians

discussed their suspicions tha t Lyda had

caused Joseph’s illness. The doctors reported

their suspicions to the Office of Special

Investigations, and the FBI placed a video

camera in J oseph’s hospital room. The tape

shows five types of abuse : (1) On

November 24 and 25, the tape showed Ly da

pouring a substa n ce, presumably water, into

Joseph’s feeding bag. This would dilute the

formula, causing the medical staff t o believe

that formula was not effectively promoting

growth and forcing the doctors to perf orm

more drastic medical procedures. (2) On

December 2, 1994, Lyda blew into Joseph’s G

t ube six times, which caused distention and

dis c omfort and forced the doctors to

discontinue feedings. (3) Also on December 2,

Lyda placed objects in to the G tube and

feeding apparatus, which blocked the food

from draining int o Joseph’s stom ach. (4)

That same day, Lyda placed her fingers over

Joseph’s trachea site, suffocating him for sixtytwo seconds. This suffocation threatened to

spark a long apneic episode wit h significant

effects. (5) Finally, two tapes reveal Lyda’s pinching and sque ezing Joseph severely and

causing him visible pain. A nurse’s report

describes Josep h ’s discomfort, and a treating

physician testified that pain can induce apnea.

A g o vernment forensic toxicologist, Dr.

Alphonse Poklis, reviewed the medical records

of all three children and determined that Ipecac

poisoning had caused their symptoms. A

government expert in mitochondrial disease,

Dr. Richard Haas, t est ified that even if a

mitochond rial disorder had caused some of

their symptoms, Ipecac poisoning was responsible for some symptoms. Haas also testified

that another human being caused their anoxia

(lack of oxygen). After separation from Lyda,

Joseph’s physical symptoms di s appeared,

which some experts testified is more consistent

with Ipecac poisoning t han with a

mitochondrial disorder.

II.

Lyda pleaded guilty to four counts of injury

t o a child and endangering a child as defined

by Texas Penal Code §§ 22.04 and 22.041 and

incorporated by the ACA. The plea agreement

stipulated that Lyda’s sentence “will be

imposed in conformity w i th the Federal

Sentencing Guidelines and Policy Statements

, which may be up to the maximum allowed by

statute for her offense.”

The district court init ially calculated a total

offense level of 29 and a crimina l history

category of I, which yielded an imprisonment

range of 87-108 mon t hs and a supervised

release period of 2-3 years. The court then

made several upward departures:

(1) The court departed upward to increase

her crimin al history category from I to III to

reflect uncharged criminal conduct toward Aaron, Daniel, and Joseph, U.S.S.G. Manual4

§ 4A1.3 (2000). (2) The court departed

upward by four levels for extreme conduct,

U.S.S .G. § 5K2.8. (3) The court i m posed

consecutive rather than concurrent sentences,

U.S.S.G. § 5G1.2(d). (4) The court departed

upward by three l

evel s for extreme

psychological injury, U.S.S.G. § 5K2.3. (5)

The court departed upward by three levels for

use of a dangerous weapon, U.S.S.G. § 5K2.6.

III.

We first must decide, as a threshold matter,

whether Lyda has waive d her ri ght to appeal

the imposition of co nsecutive sentences. 2 In

her plea agr eement, she waived the right to

appeal any sente n ce within the guidelines

range but reserved the right to appeal any departure from the guideline range. If we decide

that imposing consecutive sentences is an enhancement under U.S.S.G. § 5G1.2(d), the

terms of the plea agreement may bar an appeal;

if we determine that imposing consecutive

sentence s is an upward departure, Lyda

retains the right to appeal. Even if she waived

h er right to appeal under the guideline s, she

may ret ain that right based on the guidelines’

inconsistency with the ACA.

A.

The plea agreement waives Lyda’s right to

a ppeal on all grounds other than departure s

, but it does not explicitly address cons e cutive or concurrent sen t encing. 3 During re-arraignment , the court engaged Lyda in a

discussion about the scope of the waiver.

After explaining that “you cannot appeal your

sentence on any ground and you cannot appeal

any decision

. . . concerning the guidelines

applicable to your case,” the court immediately

added that “you may appeal the sentence if I

depart from the guideline range.”

The court did not describe the consecutive

sentences as either an enha n cement under

§ 5G1.2(d) or an upward depa rture. 4 This

court has refused to assu m e that a court

impo sed consecutive sentences as an

enhancement rather than a departure. United

States v. Candelari o-Cajero , 134 F.3d 1246,

1248-4 9 (5th Cir. 1998). Absent an

explanation, we must presume that the district

court imposed conse cut ive sentences as a

departure. Further, the guidelines compelled

the court to impose consecutive s entences as

a departure, not an enhancement.

B.

The guidelines explain the conditions under

which a sentence should be imposed consecutively or concurrently:

(a) The senten ce t o be imposed on a

count for which the statute (1) specifies

2 Although Texas state law gov e rns whether

Lyda waived her statutory right to concurrent

sentences, federal law determines whether she has

preserved her r ight to appeal the sentence. C f.

United States v. Wertman

, 485 F.2d 566, 567 (5th

Cir. 1973) (per curiam) (holding the federal courts

follow federal sentencing procedures when deciding

cases under the Assimilative Crimes Act). Because

federa l procedural rules govern, they will determine

whether any procedural errors have caused Lyda to

sacrifice her right to appeal. 3 The plea agreement states: “Defendant

voluntarily and knowingly waives her right to

appeal her convictio n and the parties voluntarily

and knowingly waive their r i ghts to appeal the

sentence on any ground

. . . . However, this waiver

of rights does not extend to the parties’ rights to

appe al any departure from the Guideline range

found by the district court.”

4 The court found “it ha[d] the authority” to do

so under the Texas laws incorporated by the Assimilative Crimes Act.5

a term of imprisonment t o be imposed

and (2) requires t h at such term of

imprisonment be imposed to run

c onsecutively to any other term of

imprisonment shall be determined by

that statute and imposed independently.

(b) Except as otherwise required by law

. . ., the sentence imposed on each other

count shall be the total punishment as

determined in accordance with Part D of

Cha pter Three, and Part C of thi s

Chapter.

(c) If the sentence imposed on the count

carrying the highest statutory maximum

is adequate to achi e ve the total

punishme nt , then the sentences on all

counts shall run concurrently, except to

the extent otherwise required by law.

(d) If the sentence imposed on the count

carrying the highest statutory maximum

is less than the total punishment, t hen

the sentence imposed on one or more of

the other counts shall run consecutively,

b ut only to the extent necessary to

produce a combined sentence equa l to

the total punishment. In all other

r espects, sentences on all counts shall

run con currently , except to the extent

otherwise required by law.

U.S.S.G. § 5G1.2.

Section 5G1 .2(d) i nstructs a court to

impose consecutive sent ences as an

enhancement only if the sentence derived from

a single count cannot achieve the “total

punishment.” The decision to impo se

consecutive sentences up to the level of “total

punishment” would be an enhancement.

Impos ing consecutive sentences above the level of “total puni shment” would be an

upward departure. 5

Lyda argues that “total punishment” should

be calculated based on the defendant’s criminal

history cate g ory and combined offense level.

She claims that the cou rt shoul d i gnore

upward departures when considering whether

to impose consecutive s ent ences under

§ 5G1.2(d). According to Ly da, the court’s

original ran ge of 87 to 108 months’

imprisonment should establ ish the “total

punishment” under the guidelines.

The government argues that “total

punishment” should include th e upward

departures for inadequate criminal history,

psychological injury, using a weapo n, and

egregious conduct. Four upward departures

raised the offense level to 39 and the criminal

history category

to III. This yields a guideline

range of 324-405 months.

“Total punishment” should be calculated

“from the Guidelines Sentencing T able by

corr elating the appropriate criminal history

category

. . . with the defendant’s combined

offense level.” U

nite d States v. King , 981

F.2d 790, 797 (5th Cir. 1993). A close

reading of the guideline s’ text, structure, and

commentary suggests that departures fall

5 U.S.S.G. § 5G1. 2 (d) (labeling concurrent

sentences as the default); Candelario-Cajerol, 1 34

F.3d at 1229; United States v. H.I.

, 83 F.3d 592,

59 3 -94 (2d Cir. 1998) (“[T]he district court may

abjure the concurrent sentence paradigm set forth

in § 5G1.2

. . . . Its decision to do so constitutes an

upward departure”); United States v. Quinones

, 26

F.3d 213, 215-17 (1st Cir. 1994) (same). C f.

United States v. Martinez

, 950 F.2d 222, 226 (5th

Cir. 1991) (permitting court to reject § 5D1.2(d)’s

consecutive sentence requirement by departing

from the guidelines range).6

outside of the guidelines range.

First, the guidelines provide an incomplete

definition of “total punishment.” Section

5G1.2(b) specifies that “the sentence imposed

on each other count shall be t he total

punishment as determined in accordance with

Part D of Chapter 3, and Part C of this

Chapter.” Chapter 3, Part D describes the

grouping rules for mult iple counts. Chapter 5,

Part C describes the procedures for imposing

a term of imprisonment. Neither chapter

mentions departures.

Second, the official commentary to § 5G1.2

ex plains that “total punishment is determined

by the adjusted combined offense level.”

Determining t he offense level differs from

determining the overall prison senten ce; the

offense level excludes offender characteristics

and departures “on other grounds.” U.S.S.G.

p t. H & intro. cmt (offender characteristics);

U.S.S.G. pt. K (policy statements about other

grounds for departures). By defining total

punis hment with reference to the “combined

offense level,” the gu idelines exclude the

consideration of departures from “to tal

punishment.”

Finally, the general application pri nciples

for the guidelines dist inguish between

d etermining the guidelines range and the

cumulative prison sentence. U.S.S.G. §

1B1.1(h)-(i). The courts do not consi der the

departures contained in Chapter 5, Parts H and

K to determine the guidelines range; they

consider departures only t o establish the

overall prison sentence. I d. These structural

features have led c ourts to concl ude that

“Departures

. . . are sentences imposed outside

the Guidelines.” United States v. Joetzki

, 952

F.2d 1090, 1097 (9th Cir. 1991). The government point s t o three cases in

which courts casually have stated that upward

departure s should be included in the “total

punishment” calculation. 6 Each of these cases

mentions the issue only in passing, and no ne

offers a reason for including upward

departures in the “total puni shm ent”

calculation.

The text and structure of the guidelines

leads us to conclude that U.S.S.G. §5G1.2's

“total punishment” calcul at ion excludes

depart ures. The district court imposed

consecutive sentences as an upward departure,

so Lyda retains the right to appeal.

IV.

When one commits no n-federal crimes on

federal property within a state’s territorial jurisdiction, the United States can prosecute him

for violations of state law under the ACA.

The act requires federal courts to find the defendant gui lt y o f a “like offense” and to impose a “like punishment.” 18 U.S.C. § 13. 7

6 United States v. Hernandez Coplin

, 24 F.3d

312, 318 n.6 (1st Cir. 1994) ( d ictum ); United

States v. Grig gs , 47 F.3d 827, 831-32 (6th Cir.

1995) (quoting dictum from Hernandez Coplin );

Kikumura v. United States

, 978 F. Supp. 563, 584

(D.N.J. 1997) (upho lding consecutive sentences

imposed up to level of “tota l punishment” that

included upward departure).

7 The relevant portion of the statute reads:

Whoever within or upon any of the places

now existing or hereafte r reserved or

acquired as provided in Sect ion 7 of this

title, or on, a bove, or below any portion of

the territorial sea of the

United States not

within the jurisdictio n of any State,

Commonwealth, territory, possession or

district is guil ty of any act or omission

(continued...)7

Lyda pleaded guilty to violations of the ACA

and t he incorporated Texas Penal Code

§§ 22.04 and 22.0 4 1, which prohibit injuring

or endangering children. The di strict court

the n had an obligation to impose a “like

punishment.”

Lyda argues that the court violated that

obligation by imposing a thirty-two-year consecutive sentence , when Texas law permitted

only a ten-year concurrent sentence. Although

this c o urt has never directly addressed the

question in the context of concurrent and consecutive sentencing, the best reading of our

jurisprudence and cases from the other courts

of appeals requires the district court to cap

Lyda’s sentence at ten years.

A.

We review a challenge to the application of

the sentencing guidelines under the ACA de

novo

. 8 In a series of three cases, we have explained th e ACA’s requirement that district

courts impose “like punishments.”

In United States v. Davis , 845 F.2d 94, 95 (5th Cir. 1988), we considered whether district

courts can impose a federally mandated special

assessment for each count of misdemeanor

th e ft prosecuted under Texas Penal Code

§ 32.03. We explained that the ACA “assimilat[es] the entire substantive criminal law of

the state wherein the federal enclave is located,

‘including the laws . . . governing the manner

in which an offense is to be punished.’” I d. at

96 (internal citations o mit t ed). The federal

special assessment, by its own terms, applied

to all federal statutes, including the ACA; the

court emphasized, however, t hat the ACA’s

requirement that individuals be “su bject to a

like punishment” establishes an overriding

exception to federal sentencing statutes. I d. at

96-97.

We described the appropriate i n quiry as

wheth e r the defendant would face a penalty

“like” the federal special assessment under

Texas state law. I

d. at 97. “Like” implies similarit y, and courts should consider the facts of

each case and relevan t federal policy

considerations when det ermining that

similarity. I

d. at 98-99. Federal courts had

rejected state laws requiring minimum periods

of inc a rceration before parole, because these

laws might interfere with the functioning of the

(now-defunct) federal

parole system. Id. at

99. 9 We determined that special assessments

did not implicate such weighty federal

interests. Id. at 99.

Because Texas permitted similar, but less

severe, assessments against criminal

defendant s

, we decided to cap the federal 7 (...continued)

which, although not made punishable by any

e nactment of Congress, would be punishable

if committed or om

itted within the

jurisdiction of the State, Territory,

Possession, or District in which such place

is situated, by the laws thereof in force at

the time of such act or omission, shall be

guilty of a like offense and subject to a like

punishment.

18 U.S.C. § 13.

8 United States v. Marmelejo , 915 F.2d 981,

984 (5th Cir. 1990) (treating it as a question of

statutory interpretation); Un ited States v. Teran

, 845 F.2d 94, 96-97 (5th Cir. 1988) (same). 9 The other federal courts of appeals uniformly

refuse to incorporate state laws determining parole

eligibility. S ee, e.g., United States v. Pierce

, 75

F.3d 173, 177 (4th Cir. 1996); United States v.

Smith , 574 F.2d 988, 992 (9th Cir. 1978).8

assessments at the level set by stat e law. I d.

This compromise ensured similarit y with state

punishments while preserving the goals of the

federal assessment statute. I d. 10 We expressly

reserved the question whether a federal court

can impose a stricter sentence than does state

law. 11

In United States v. Marmole j o

, 915 F.2d

981, 981 (5th Cir. 1990), the defendant pleaded guilty to a charge of cashing bad checks

and was sentenced t o six months’

imprisonment and a year of supervised release.

We held that the ACA ’s “like” requirement

limit s the range of punishment to the minimum

and maximum sentences provided by state law.

Id. at 984. Within that range, the sentencing

guidelines will determine the length of the prisoner’s sentence. I

d. Because Texas law provided fo r up to ten years’ imprisonment and

parole, we held that the federalsentence sati sfied the ACA’s “like” requirement. Id. at

984-85.

Finally, in United States v. Teran

, 98 F.3d

831, 835 (5th Cir. 1996), we held that a state’s

maxim um penalties cannot depri ve a

magistrate jud ge o f jurisdiction under the

ACA. A magistrate judge found the defendant

guilty of driving while intoxicated on a milit ary

base. Id. at 833. State law classified the DWI as a misdemeanor punishable by up to two

y ears in prison; federal law gives magistrate

judges jurisdiction only over offenses

punishable by imprisonment for up to a year.

Id. at 834. We held that the ACA did not

req u ire the assimilation of the maximum

punishment under state law, because the prison

t erms did not differ significant ly, and fe deral

courts have a strong interest in the ability to

classify criminal cases as felonies or

misdemeanors. Id. at 834-35.

Federal courts of appeals unanimously

agree that state sentencing ranges should set

t he minimum and maximum length for federal

prison sentences. 12 The logical extension of

10 The Fourth Circuit reached the opposite

conclusion under the ACA when applying Maryland law, because Maryland did not permit state

cour t s to impose special assessments. United

States v. King , 824 F.2d 313, 315-16 (4th Cir.

1987).

11 Davis

, 845 F.2d at 99 n.4 (“[W]e intimate no

opinion as to whether a federal court under the

authority of the AC A may impose a stricter custodial sentence than that m andated by state law

strictly on the basis of federal policy concerns.”). 12 M ost circuits have addressed the question.

See United States v. Vaughan

, 682 F.2d 290, 294

(2d Cir. 1982) (“It is a well established principle

that a state statute that fixes the length of a prison

term should control the sentence imposedby federal courts under the Act.”); Unit ed States v.

Queensborough

, 227 F.3d 149, 160 (3d Cir. 2000)

(“Courts have interpreted ‘like punishment’ to

mean that state law sets the minimum and

maximum punishment while the federal sentencing

guidelines shoul d be used to determine the actual

sentence within that range.”), cert. denie d

, 531

U.S. 1131 (2001); United States v. Young

, 916

F.2d 147, 150 (4th Cir. 1990) (“[T]he ‘like

punishmen t ’ requirement of the [ACA] 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 d iscr etion federal judges should apply the

Se n tencing Guidelines to the extent possible.”);

Marmolejo

, 915 F.2d at 984 (“The ACA therefore

limits the range of punishment to the minimum and

max imum sentences provided by state law.”);

United St ates v. Davenport , 131 F.3d 604, 610

(7th Cir. 1997) (same); United States v. Norquay

, 905 F.2d 1157, 1161 (8th Cir. 1990) (“We

interpret the Major Crimes Act to require only that

(continued...)9

this rule is that a federal court cannot triple the

l ength of the state prison sentence, even if it

does so through consecutive sentencing rather

than by ignoring a state statutory maximum.

Although conceding that state law limit s the

maximum and minimum punishment s available,

the government offers countless reasons to

d i stinguish concurrent sentencing laws from

statutory minimums and maximums 

### S S the ACA

only requires “like” punishment, 1 3 the

concurrent sentencing law is codified in the

“Introductory Provisions” of the Texas Penal

Code, 14 and the conc urrent sentencing law might be merely procedural. 1 5 The

government fails, however, to expl ain why

these distinctions should make a difference. A

close look at the cases in other j urisdictions

confirms that t he ACA caps Lyda’s prison

sentence at ten years.

In an analogous case, the Seco nd Circuit

held that federal courts must apply state

mandatory minimums for recidivist b urglars.

Vaughan

, 682 F.2d at 292. The New York

Penal Code had a separate provision increasing

the sentenc e fo r the second violent felony

c onviction; the court held that the district

cou rt had correctly applied this mandatory

minimum. Id. This suggests that federal

courts should consi der all provisions of state

law that affect the length of the sentence.

Only the Ninth Cir cuit has squarely

addressed the issue under the ACA. In U nited

States v. Leake

, 908 F.2d 550, 5 52 (9th Cir.

1990), the court considered whether California

law limit

ing t he length of consecutive

sentences would bind a federal court applying

the ACA. 16 The court declared the imposition

of consecutive sentences consistent with state

law, but it did consider state law binding. Id.

By contrast, the court endorsed the traditional

rule that federal courts can ignore state parole 12 (...continued)

the se ntence imposed for burglary fall within the

minimum, if any, and maximum sentence

established by state law

. . . . Within that range,

the sentence should be calculated according to the

Federal Sentencing Guidelines.”) (citations

omitted); United States v. Leake , 980 F.2d 550,

551 (9th Cir. 1990) (same); United St ates v.

Garcia

, 893 F.2d 250, 254 (10th Cir. 1989)

(ho l ding that the ACA “requires courts to impose

sentences for assimilative crimes that fall within

the maximum and minimum terms establi s hed by

state law”); United States v. Gaskell , 134 F.3d

1039, 1045 (11th Cir. 1998) (“We leave intact the

established rule that a term of incarceration under

the ACA cannot exceed the limits set by

assimilated state law.”).

13 This opinion and every court dec i sion cited

assumes this unremarkable legal standard.

14 The Fourth Circuit has rejected the argument

tha t the location of the law in the code should

affect a court’s wi llingness to apply it under the

ACA. United States v. Price

, 812 F.2d 174, 175-

76 (4th Cir. 1987) (refusing to consider publication

in code of criminal procedure). 15 Tex. Penal Code § 3.03 causes a substantive

change in the length of the defendants confinement,

as in the instant case by the drastic effect on the

sentence. The government fails to offer persuasive

reasons to consider the statute procedural or a test

for sorting substantive and procedural state

sentencing laws.

16 The Ninth Circuit has issued a subsequent

opinion consistent with this, holding that state laws

regulating sentence enhancements trump the

guidelines in any conflict. U nited States v. Hookano , 957 F.2d 714, 716 (9th Cir. 1992).10

eligibilit y requirements when handing out sentences under the ACA. Id. 17

The Eighth Circuit has interpreted the Indian Major Crimes Act a s requiring district

courts to follow the sentencing guideli nes,

rather than state law, when choosing between

consecutive and concurrent s e ntences. Norquay , 905 F.2d at 1162 18 The court held that the district court had erred by applying state

law regulating concurrent versus consecu t ive

sentences, instead of U.S.S.G. § 5G1.2. Id

. at

1162. The court explained that t he Major

Crimes Act does not requi re the courts to

follow “ever y last nuance of a sentence that

would be imposed in state c o urt.” Id. (citing

Garcia

, 893 F.2d at 254, which interpreted the

ACA). The court analogized consecutive

sentencing laws to state regulations of parole

eligibilit y, which federal cour t s routinely ignore under the ACA, id.

, and explain ed its

concern that application of state law regulating

consecutive versus concu r rent sentencing

“wo uld be disruptive to the federal prison

system,” id. at 1163.

The decision whether to assimilate the Texas conc urrent sentencing law should turn on

the relative persuasiveness of Leake and Norquay

. In other words, it should hinge on

whether, as t he government asserts, § 5G1.2

protects an important fed eral interest of the

type usually recognized under the ACA.

There are two possible federal interests:

The Norquay court, 905 F.2d at 1162, cited

the federal interest in

co ntrolling the prison

system, but its rat io nale is unpersuasive for

three reasons. First, the court considered concurrent sentencing requirements and good behavior credits for time served in the same section of its analysis. Id. at 1162-63. Good behavior credits obviously

relate to the internal

operations of the prison, but the overall length

of t he sentence is affected by a state’s

statutory maximums as well as its con current

sentencing laws. The court conflated the

discussion of two laws that have very different

implications for the internal operatio ns of a 17 In an ambiguous decision, the Fourth Circuit

used the sentencing guidelines to determine whet her

sentences under the ACA should run concurrently

or consecuti v ely. United States v. Young

, 916

F.2d 147, 151, 152 (4 th Cir. 1990). The court

began by embracing the established rule that state

law shoul d define the maximum and minimum

prison terms under the ACA. I d. at 150-51. The

court vacated the se ntences that exceeded state

maximums and remanded and provided sentencing

instructions in dictum

. Id. The court directed the

district court to use U.S.S.G. § 5G1.2 (d) when

d eter mining whether to impose a consecutive or

concurrent se ntence. Id. at 152. Although the

opinion does not mention the interaction between

the sentencing guidelines and state laws regulating

concurrent sentences, the decision sugg ests that

federal district courts might apply, as a default

rule, the guidelines’ regulations for imposing

consecutive sentences.

18 The offense at issue was burglary, which

federal law does not defi ne or punish. N orquay

, 905 F.2d at 1159. In those cases, the statute

directed at the time:

Any offense

. . . not defined and punished by

Federal law in force within th e exclusive

jurisdiction of

the United States shall be

defined and punished in accordance with the

laws of the State in which such offense was

committed as are in force at the time of such

offense.

(continued...) 18 (...continued)

Id. at 1160 n.6 (quoting 18 U.S.C. § 1151).11

federal prison.

Second, under the facts of N orquay

, the

defenda nt wo uld have been forced to serve a

federal sentence in state prison if they had run

concurrently. Id. at 1163. The United States

may have an interest in applying federal correctional policies when a pr isoner serves a

federal sentence. Finally, the court failed to

explain how the a p plication of state law on

concurrent sentences would interfere with the

operati on of fed eral prisons. Without a

convincing explanation , we will further the

usual policies of the ACA.

In the instant case, the government argues

t hat we should prom ote its intere st in

uniformly applying federal law. This argument

has several flaws : First, as the Tenth Circuit

noted, it is impossible to promote intrastate

uniformity by applying state sentences while

simultaneously preserving interstate

uniformity. Garcia , 893 F.2d at 253-54. The

ACA represents a deliberate choice to prom ote

i ntrastate uniformity above i nterstate

uniformity when a defendant commits a crime,

otherwise punishable by state law, on federal

land. Id.

Second, the gov e rnment’s proposed

exception would swallow the rule created by

the ACA. Congress passed the ACA to ensure

t hat state laws, rather than federal laws, will

determine the length of sentences when a conflict arises. 19 If the courts relaxed this rule

whenever the sentences conflict, the ACA would be practically eliminated. 20

Texas law mandates concurrent sentences.

Texas’s choice to limit t he length of all

concu rrent sentences deserves as much

deference as does a choice to set the statutory

maximum for an individual crime. 2 1 To give

full e ffect to the ACA, we must cap Lyda’s

consecutive sentences at ten years.

B.

The district court and the parties agree that

Tex. Penal Code § 3.03 would require the sentences to run concurrently. 22 The controversy

19 See, e.g., United States v. Sharpnack , 355

U.S. 286, 291 (1958); Unite d States v. Collazo

, 117 F.3d 793, 794 (5th Cir. 1995). 20 The government argues that through the plea

bargain, Lyda voluntarily waived the applicability

of state sentencing law. The government does not

cite any authority for t he proposition that a

criminal defendant has the power to waive the right

to be tried under state law. Indeed, it would be odd

if a plea bargain could materially alter the terms of

a federal statute that chooses the applicable law in

a manner designed to promote systemic interests.

21 It is difficult to imagine Texas’s setting its

criminal penalties for individual sentences without

regard to the

concurrent/consecutive sentencing

r ules. A state that has lenient penalties for

individual crimes but many similar indi vidual

crimes could increase average prison sentence

length by using cons ecutive sentencing. A state

that has stiff penalties for individual crimes and

few ove r la pping crimes could eschew the

consecutive sentencing and achieve the same

average prison sentence length. Texas chose to

adopt concurrent sentencin g in the context of its

sentences for individual crimes. Incorporating

sentences for individual crimes while ignoring the

concurrent/consecutive choice risks undoing the

deliberate policy choices of the state legislature.

22 Texas Penal Code § 3. 03(a) provides in

pertinent part:

(continued...)12

centers on whether, by accepting the plea bargain, Lyda waived her statutory right to concurrent sentences. The district court and parties rely on Ex Parte McJunkins , 954 S.W.2d

39 (Tex. Crim. App. 1997), to define the elements of waiver.

In McJunkins

, the defendant pleaded guilty

to two informations charging him with murder

with a deadly weapon and aggravated robbery;

in exchange, the government recommended

that he serve two consecutive sentences of life

imprisonment. Id. The court classified the

right to concurrent sentencing as an individual

right that the defendant may waive, just as he

can waive the right to separate jury trials. Id.

at 41. The court emphasized that the plea

agree m ent specified consecutive sentences. I d.

Lyda’s written plea agreement did not

mention consecutive s ent ences. At the plea

colloquy, the court informed her that she potentially could face consecutive sentences. For three reasons, Lyda’ s oral statem ent of

understanding should not suffice to waive her

statutory rights:

First, the McJunkins court specifically preserved LaPorte v. State

, 840 S.W.2d 412, 414

(Tex. Crim. App. 1992), which had construed

narrowly the waiver of the right to concurrent

sentences after a jury trial. M cJunkins

, 954

S.W.2d at 41. Under the rule of L a Porte , a

defendant, to preserve the issue for appeal

, need not deman d separate trials or object at

trial to the improper cumulation of sentences;

if the state chooses to consolidate the charges

in a single trial, the defendant retains his statutory right to concurrent sentences, even if he

does not raise the issue at trial. I d. Expressly

carving out this exception suggests that the

Court o f Criminal Appeals will permit a defendant expressly to waive his right to appeal

but will not imply such a waiver lightly.

Second, a Texas court of appeals recently

refused to ext end M

cJunkins to a passive

waiver of the sta tutory ri ght to concurrent

sentences. In W

orthington v. State

, 38 S.W.3d

815, 819 (Tex. App. 

### SS

Houston [14t h Dist.]

2001), vacated on other grounds

, Nos. 0558-

01, 0559-01, 2001 Tex. Crim. App. LEXIS 65

(Tex. Crim. App. Sept. 12, 2001), a trial court

improperly cumulated burglary sentences. The

state argued tha t by failing to object to the

cumulation order at t rial, the defendant had

waived the right to concurrent sentences. Id.

The court ref

used to interpret the failure to

object as a knowing, voluntary, and intelligent

waiver. Id. at 820. This decision suggests

that passively resp o nding during a plea

colloquy is not proof enough of a knowing and

intelligent waiver; Texas courts would require

that the waiver appear in writing.

Third, the plea colloquy merely ensures that 22 (...continued)

W hen the accused is found guilty o f more

than one offense arising out of the same

criminal episode prosecu t ed in a single

criminal action, a sentence for each offense

for which he has been found guilty shall be

pronounced. Except as provided by

Subsection (b), the sentences shall run

consecutively.

Texas Penal Code § 3.01 defines a “criminal

episode,” irrespective of the number of victims, as:

(1)[ ] offenses [ ] committed pursuant to the

same transaction or pursuant to two or more

transactions that are connected or constitute

a common scheme or plan; or

(2) [ ] o ffenses [that] are the repeated

commission of the same or similar offenses.13

the defendant understands the “maximum

possible penalty ” he faces under a plea. 2 3 Information about the maximum possible

sentence should not bar th e defendant from

appealing upward departures. Indeed, during

the colloquy, the prosecutor told the court that

Lyda would have the right to appeal the thirtytwo-year sentence.

V.

Lyda does not appeal the upward

depart u res for criminal history, U.S.S.G. §

4A.1.3, and extreme conduct, U.S.S.G. §

5K2.8, which increased her criminal hi story

l evel t o category III and her offense level to

33, yielding a guideline range of at least

fourteen years’ imprisonment. Because the

ACA and Te xas law cap her sentence at ten

years, she cannot receive the minimum

sentence under the guidelines.

The di strict court shoul d use the upward

departures for criminal history and egregious

conduct to justify sentencing Lyda to the statutory maximum of ten ye ars. We need not

consider the validity of the upward departures

for extreme psycholog ical injury and use of a

dangerous instrumentality, because the ACA

prevents the court from further increasing the

sentence.

The judgment of sentence is VACATED,

and this matter is REMANDED for resentencing in accordance with this opinion.

23 F ED

. R. C RI

M

. P. 11(c)(1); see also United

States v. Meyers , 150 F.3d 459, 464 n.8 (5th Cir.

1998).