IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 00-50436

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CYNTHIA L. MARTINEZ,

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 JONES, SMITH and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Cynthia Lyda, formerly Cynthia Martinez,

appeals a sentence of thirty-two years’

imprisonment under the Assimilative Crimes

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

the district court to impose a punishment

“like” the ten-year maximum imposed under

Texas’s concurrent sentencing requirements.1

We agree that, under the facts of this case, a

federal sentence more than three times the

length of the sentence 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 There 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 conditionsin three

of her childrenSSAaron, Daniel, and Joseph.

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

On the recommendation of Joseph’s

treating physicians, the FBI began videotape

surveillance ofJoseph’s hospitalroom. Those

tapesrevealed Lyda’s mistreatment ofJoseph,

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 criminal history and

extreme conduct. Aaron, Daniel, and Joseph

had a common pattern of development:

Aaron was born prematurely in 1988. As

he grew older, Lyda reported an increasing

number of apnea and seizure episodes. Aaron

lost weight and suffered fromchronic vomiting

and diarrhea; doctors surgically inserted a

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

diagnosis, although they considered various

mitochondrial disorders; the hospital released

Aaron. In March 1990, Lyda called her

husband, David Martinez, at work and

reported that Aaron had stopped breathing.

When Martinez arrived, Aaron lay flat on his

back, wearing only a diaper, and Lyda sat

crying by his body. Martinez began CPR, but

the doctors reported that Aaron was brain

dead, and the parents ultimately 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 induces

vomiting. After exhuming Aaron’s body, a

forensic toxicologist analyzedAaron’s hair and

found proof of Ipecac poisoning. The treating

physician, Dr. Saunder M. Bernes, testified

that he believed Aaron’s deathwas a homicide,

and the large fluctuationsin his physical health

were more consistent with poisoning thanwith

a degenerative disease.

After Daniel’s premature birth, he

experienced a similar pattern of health

problems: mild developmental delay, seizures,

apnea, vomiting, feeding intolerance, and

gastrointestinalbleeding. Doctors were unable

to isolate the cause of these symptoms. The

treating 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 and a

colonoscopy. During Daniel’s final

hospitalization in August of 1993, Lyda was

the only other person in the room during his

cardiac arrest. She failed to alert medical

personnel until Daniel had reached an

advanced 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 that he ingested food

normally. The failure to gain weight persisted

until he reached the age of five and one-half

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

doctors failed to diagnose his illness, and the

government’s expert ruled out a mitochondrial

disorder (although a defense expert testified
3

that all three children suffered from a

mitochondrial disorder). 

The surgeons performed a gastrostomy, a

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

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

sepsis,” or the presence of mixed numbers of

bacteria in his bloodstream. Four different

types of fecal bacteria polluted the

bloodstream, and, at sentencing, experts

agreed that only the introduction of feces into

the intravenous line could have caused this

unusually severe sepsis.

After the sepsis, four treating physicians

discussed their suspicions that 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 Joseph’s hospital room. The tape

shows five types of abuse: (1) On

November 24 and 25, the tape showed Lyda

pouring a substance, presumably water, into

Joseph’s feeding bag. This would dilute the

formula, causing the medical staff to believe

that formula was not effectively promoting

growth and forcing the doctors to perform

more drastic medical procedures. (2) On

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

tube six times, which caused distention and

discomfort and forced the doctors to

discontinue feedings. (3) Also on December 2,

Lyda placed objects into the G tube and

feeding apparatus, which blocked the food

from draining into Joseph’s stomach. (4)

That same day, Lyda placed her fingers over

Joseph’strachea site,suffocating himforsixtytwo seconds. This suffocation threatened to

spark a long apneic episode with significant

effects. (5) Finally, two tapes reveal Lyda’s

pinching and squeezing Joseph severely and

causing him visible pain. A nurse’s report

describes Joseph’s discomfort, and a treating

physician testified that pain can induce apnea.

A government forensic toxicologist, Dr.

Alphonse Poklis,reviewed themedicalrecords

of allthree children and determined that Ipecac

poisoning had caused their symptoms. A

government expert in mitochondrial disease,

Dr. Richard Haas, testified that even if a

mitochondrial disorder had caused some of

theirsymptoms, Ipecac poisoning wasresponsible for some symptoms. Haas also testified

that another human being caused their anoxia

(lack of oxygen). After separation from Lyda,

Joseph’s physical symptoms disappeared,

which some expertstestified ismore consistent

with Ipecac poisoning than with a

mitochondrial disorder.

II.

Lyda pleaded guilty to four counts of injury

to a child and endangering a child as defined

by Texas PenalCode §§ 22.04 and 22.041 and

incorporated by the ACA. The plea agreement

stipulated that Lyda’s sentence “will be

imposed in conformity with the Federal

Sentencing Guidelines and Policy Statements,

which may be up to the maximum allowed by

statute for her offense.”

The district court initially calculated a total

offense level of 29 and a criminal history

category of I, which yielded an imprisonment

range of 87-108 months and a supervised

release period of 2-3 years. The court then

made several upward departures:

(1) The court departed upward to increase

her criminal history category from I to III to

reflect uncharged criminalconduct towardAaron, Daniel, and Joseph, U.S.S.G. Manual
4

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

upward by four levels for extreme conduct,

U.S.S.G. § 5K2.8. (3) The court imposed

consecutive rather than concurrent sentences,

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

upward by three levels 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 waived her right to appeal

the imposition of consecutive sentences.2In

her plea agreement, she waived the right to

appeal any sentence 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 ofthe plea agreement maybar an appeal;

if we determine that imposing consecutive

sentences is an upward departure, Lyda

retains the right to appeal. Even if she waived

her right to appeal under the guidelines, she

may retain that right based on the guidelines’

inconsistency with the ACA.

A.

The plea agreement waives Lyda’s right to

appeal on all grounds other than departures,

but it does not explicitly address consecutive

or concurrent sentencing.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 enhancement under

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

court has refused to assume that a court

imposed consecutive sentences as an

enhancement rather than a departure. United

States v. Candelario-Cajero, 134 F.3d 1246,

1248-49 (5th Cir. 1998). Absent an

explanation, we must presume that the district

court imposed consecutive sentences as a

departure. Further, the guidelines compelled

the court to impose consecutive sentences as

a departure, not an enhancement.

B.

The guidelines explain the conditions under

which a sentence should be imposed consecutively or concurrently:

(a) The sentence to be imposed on a

count for which the statute (1) specifies

2 Although Texas state law governs whether

Lyda waived her statutory right to concurrent

sentences, federal law determines whether she has

preserved her right to appeal the sentence. Cf.

United States v. Wertman, 485 F.2d 566, 567 (5th

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

followfederal sentencing procedures when deciding

cases under theAssimilativeCrimes Act). Because

federal procedural rules govern, they will determine

whether any procedural errors have causedLyda to

sacrifice her right to appeal.

3 The plea agreement states: “Defendant

voluntarily and knowingly waives her right to

appeal her conviction and the parties voluntarily

and knowingly waive their rights to appeal the

sentence on any ground . . . . However, this waiver

of rights does not extend to the parties’ rights to

appeal 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 to be imposed

and (2) requires that such term of

imprisonment be imposed to run

consecutively 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

Chapter Three, and Part C of this

Chapter.

(c) If the sentence imposed on the count

carrying the highest statutory maximum

is adequate to achieve the total

punishment, 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, then

the sentence imposed on one or more of

the other countsshallrun consecutively,

but only to the extent necessary to

produce a combined sentence equal to

the total punishment. In all other

respects, sentences on all counts shall

run concurrently, except to the extent

otherwise required by law.

U.S.S.G. § 5G1.2.

Section 5G1.2(d) instructs a court to

impose consecutive sentences as an

enhancement only if the sentence derived from

a single count cannot achieve the “total

punishment.” The decision to impose

consecutive sentences up to the level of “total

punishment” would be an enhancement.

Imposing consecutive sentences above the

level of “total punishment” would be an

upward departure.5

Lyda arguesthat “total punishment” should

be calculated based onthe defendant’s criminal

history category and combined offense level.

She claims that the court should ignore

upward departures when considering whether

to impose consecutive sentences under

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

original range of 87 to 108 months’

imprisonment should establish the “total

punishment” under the guidelines.

The government argues that “total

punishment” should include the upward

departures for inadequate criminal history,

psychological injury, using a weapon, 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 Table by

correlating the appropriate criminal history

category . . . with the defendant’s combined

offense level.” United States v. King, 981

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

reading of the guidelines’ text, structure, and

commentary suggests that departures fall

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

sentences as the default);Candelario-Cajerol, 134

F.3d at 1229; United States v. H.I., 83 F.3d 592,

593-94 (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). Cf.

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 the 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 rulesfor multiple counts. Chapter 5,

Part C describes the procedures for imposing

a term of imprisonment. Neither chapter

mentions departures.

Second, the official commentaryto § 5G1.2

explains that “total punishment is determined

by the adjusted combined offense level.”

Determining the offense level differs from

determining the overall prison sentence; the

offense level excludes offender characteristics

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

pt. H & intro. cmt (offender characteristics);

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

grounds for departures). By defining total

punishment with reference to the “combined

offense level,” the guidelines exclude the

consideration of departures from “total

punishment.”

Finally, the general application principles

for the guidelines distinguish between

determining the guidelines range and the

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

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

departures contained inChapter 5, Parts H and

K to determine the guidelines range; they

consider departures only to establish the

overall prison sentence. Id. These structural

features have led courts to conclude that

“Departures. . . are sentencesimposed outside

the Guidelines.” United States v. Joetzki, 952

F.2d 1090, 1097 (9th Cir. 1991).

The government points to three cases in

which courts casually have stated that upward

departures should be included in the “total

punishment” calculation.6 Each of these cases

mentions the issue only in passing, and none

offers a reason for including upward

departures in the “total punishment”

calculation.

The text and structure of the guidelines

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

“total punishment” calculation excludes

departures. The district court imposed

consecutive sentences as an upward departure,

so Lyda retains the right to appeal.

IV.

When one commits non-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 guilty of 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) (dictum); United

States v. Griggs, 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) (upholding consecutive sentences

imposed up to level of “total punishment” that

included upward departure).

7

 The relevant portion of the statute reads:

Whoever within or upon any of the places

now existing or hereafter reserved or

acquired as provided in Section 7 of this

title, or on, above, or below any portion of

the territorial sea of the United States not

within the jurisdiction of any State,

Commonwealth, territory, possession or

district is guilty of any act or omission

(continued...)
7

Lyda pleaded guilty to violations of the ACA

and the incorporated Texas Penal Code

§§ 22.04 and 22.041, which prohibit injuring

or endangering children. The district court

then 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

onlya ten-year concurrentsentence. Although

this court 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 the ACA’s requirement that district

courts impose “like punishments.”

In United States v. Davis, 845 F.2d 94, 95

(5thCir. 1988), we considered whether district

courts can impose a federallymandated special

assessment for each count of misdemeanor

theft 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 islocated,

‘including the laws . . . governing the manner

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

96 (internal citations omitted). The federal

special assessment, by its own terms, applied

to all federal statutes, including the ACA; the

court emphasized, however, that the ACA’s

requirement that individuals be “subject to a

like punishment” establishes an overriding

exception to federalsentencing statutes. Id. at

96-97.

We described the appropriate inquiry as

whether the defendant would face a penalty

“like” the federal special assessment under

Texasstate law. Id. at 97. “Like” implies similarity, and courts should consider the facts of

each case and relevant federal policy

considerations when determining that

similarity. Id. at 98-99. Federal courts had

rejected state lawsrequiring minimum periods

of incarceration before parole, because these

lawsmight interfere with the functioning ofthe

(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

defendants, we decided to cap the federal

7

(...continued)

which, although not made punishable by any

enactment of Congress, would be punishable

if committed or omitted 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); United 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. See, 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 state law. Id.

This compromise ensured similarity with state

punishments while preserving the goals of the

federal assessment statute. Id.10 We expressly

reserved the question whether a federal court

can impose a stricter sentence than does state

law.11

In United States v. Marmolejo, 915 F.2d

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

and was sentenced to six months’

imprisonment and a year ofsupervised release.

We held that the ACA’s “like” requirement

limitsthe range of punishment to the minimum

and maximumsentences provided bystate law.

 Id. at 984. Within that range, the sentencing

guidelines will determine the length of the prisoner’ssentence. Id. Because Texaslaw provided for up to ten years’ imprisonment and

parole, we held that the federal sentence satisfied the ACA’s “like” requirement. Id. at

984-85.

Finally, in United States v. Teran, 98 F.3d

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

maximum penalties cannot deprive a

magistrate judge of jurisdiction under the

ACA. A magistrate judge found the defendant

guiltyof driving while intoxicated on a military

base. Id. at 833. State law classified the DWI

as a misdemeanor punishable by up to two

years 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

require the assimilation of the maximum

punishment understate law, because the prison

terms did not differ significantly, and federal

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

the 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

courts 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 ACA may impose a stricter custodial sentence than that mandated by state law

strictly on the basis of federal policy concerns.”).

12 Most 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 imposed by federal courts under the Act.”); United States v.

Queensborough, 227 F.3d 149, 160 (3dCir. 2000)

(“Courts have interpreted ‘like punishment’ to

mean that state law sets the minimum and

maximum punishment while the federalsentencing

guidelines should be used to determine the actual

sentence within that range.”), cert. denied, 531

U.S. 1131 (2001); United States v. Young, 916

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

punishment’ 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 discretion federal judges should apply the

Sentencing Guidelines to the extent possible.”);

Marmolejo, 915 F.2d at 984 (“The ACA therefore

limits the range of punishment to the minimum and

maximum sentences provided by state law.”);

United States 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

thisrule isthat a federal court cannot triple the

length of the state prison sentence, even if it

doesso through consecutive sentencing rather

than by ignoring a state statutory maximum.

Althoughconceding thatstate law limitsthe

maximum and minimum punishments available,

the government offers countless reasons to

distinguish concurrent sentencing laws from

statutoryminimums and maximumsSStheACA

only requires “like” punishment,13the

concurrent sentencing law is codified in the

“Introductory Provisions” of the Texas Penal

Code,14 and the concurrent sentencing law

might be merely procedural.15 The

government fails, however, to explain why

these distinctionsshould make a difference. A

close look at the cases in other jurisdictions

confirms that the ACA caps Lyda’s prison

sentence at ten years.

In an analogous case, the Second Circuit

held that federal courts must apply state

mandatory minimums for recidivist burglars.

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

PenalCode had a separate provision increasing

the sentence for the second violent felony

conviction; the court held that the district

court had correctly applied this mandatory

minimum. Id. This suggests that federal

courts should consider all provisions of state

law that affect the length of the sentence.

Only the Ninth Circuit has squarely

addressed the issue under the ACA. In United

States v. Leake, 908 F.2d 550, 552 (9th Cir.

1990), the court consideredwhetherCalifornia

law limiting the 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 sentence 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 States v.

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

(holding that the ACA “requires courts to impose

sentences for assimilative crimes that fall within

the maximum and minimum terms established 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 decision cited

assumes this unremarkable legal standard.

14 The Fourth Circuit has rejected the argument

that the location of the law in the code should

affect a court’s willingness to apply it under the

ACA. United States v. Price, 812 F.2d 174, 175-

76 (4thCir. 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. United States v. Hookano, 957 F.2d 714, 716 (9th Cir. 1992). 
10

eligibility requirements when handing out sentences under the ACA. Id.17

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

courts to follow the sentencing guidelines,

rather than state law, when choosing between

consecutive and concurrent sentences. Norquay, 905 F.2d at 116218 The court held that

the district court had erred by applying state

law regulating concurrent versus consecutive

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

1162. The court explained that the Major

Crimes Act does not require the courts to

follow “every last nuance of a sentence that

would be imposed in state court.” Id. (citing

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

ACA). The court analogized consecutive

sentencing laws to state regulations of parole

eligibility, which federal courts routinely ignore under the ACA, id., and explained its

concern that application ofstate lawregulating

consecutive versus concurrent sentencing

“would be disruptive to the federal prison

system,” id. at 1163.

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

the relative persuasiveness of Leake and Norquay. In other words, it should hinge on

whether, as the government asserts, § 5G1.2

protects an important federal 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 controlling the prison

system, but its rationale 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 the sentence is affected by a state’s

statutory maximums as well as its concurrent

sentencing laws. The court conflated the

discussion of two lawsthat have very different

implications for the internal operations of a

17 In an ambiguous decision, the Fourth Circuit

used the sentencing guidelinesto determinewhether

sentences under the ACA should run concurrently

or consecutively. United States v. Young, 916

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

began by embracing the established rule that state

law should define the maximum and minimum

prison terms under the ACA. Id. at 150-51. The

court vacated the sentences 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

determining whether to impose a consecutive or

concurrent sentence. Id. at 152. Although the

opinion does not mention the interaction between

the sentencing guidelines and state laws regulating

concurrent sentences, the decision suggests 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 define or punish. Norquay,

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 the 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 Norquay, the

defendant would 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 prisoner serves a

federal sentence. Finally, the court failed to

explain how the application of state law on

concurrent sentences would interfere with the

operation of federal prisons. Without a

convincing explanation, we will further the

usual policies of the ACA.

In the instant case, the government argues

that we should promote its interest in

uniformlyapplying federallaw. 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

ACArepresents a deliberate choice to promote

intrastate uniformity above interstate

uniformity when a defendant commits a crime,

otherwise punishable by state law, on federal

land. Id.

Second, the government’s proposed

exception would swallow the rule created by

the ACA. Congress passed the ACA to ensure

that state laws, rather than federal laws, will

determine the length ofsentences 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 the length of all

concurrent sentences deserves as much

deference as does a choice to set the statutory

maximum for an individual crime.21 To give

full effect to the ACA, we must cap Lyda’s

consecutive sentences at ten years.

B.

The district court and the parties agree that

Tex. PenalCode § 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); United 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 the 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

rules. A state that has lenient penalties for

individual crimes but many similar individual

crimes could increase average prison sentence

length by using consecutive sentencing. A state

that has stiff penalties for individual crimes and

few overlapping crimes could eschew the

consecutive sentencing and achieve the same

average prison sentence length. Texas chose to

adopt concurrent sentencing 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 deadlyweapon 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

agreement specified consecutive sentences. Id.

Lyda’s written plea agreement did not

mention consecutive sentences. At the plea

colloquy, the court informed her that she potentiallycould face consecutive sentences. For

three reasons, Lyda’s oral statement 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. McJunkins, 954

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

defendant, to preserve the issue for appeal,

need not demand 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. Id. Expressly

carving out this exception suggests that the

Court of 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 extend McJunkins to a passive

waiver of the statutory right to concurrent

sentences. In Worthington v. State, 38 S.W.3d

815, 819 (Tex. App.SSHouston [14th 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

improperlycumulated burglarysentences. The

state argued that by failing to object to the

cumulation order at trial, the defendant had

waived the right to concurrent sentences. Id.

The court refused to interpret the failure to

object as a knowing, voluntary, and intelligent

waiver. Id. at 820. This decision suggests

that passively responding 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 colloquymerelyensuresthat

22(...continued)

When the accused is found guilty of more

than one offense arising out of the same

criminal episode prosecuted 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) [ ] offenses [that] are the repeated

commission of the same or similar offenses.
13

the defendant understands the “maximum

possible penalty” he faces under a plea.23Information about the maximum possible

sentence should not bar the 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

departures for criminal history, U.S.S.G. §

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

5K2.8, which increased her criminal history

level to category III and her offense level to

33, yielding a guideline range of at least

fourteen years’ imprisonment. Because the

ACA and Texas law cap her sentence at ten

years, she cannot receive the minimum

sentence under the guidelines. 

The district court should use the upward

departures for criminal history and egregious

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

consider the validity of the upward departures

for extreme psychological 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 FED. R. CRIM. P. 11(c)(1); see also United

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

1998).