from the United States District Court for the District of New
Mexico (D.C. No. 1:17-CR-00699-MV-1)
V. Butcher, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant - Appellant.
Paige Messec, Assistant United States Attorney (John C.
Anderson, United States Attorney, with her on the brief),
Albuquerque, New Mexico, for Plaintiff - Appellee.
TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
MCHUGH, CIRCUIT JUDGE.
Arnold Jones is a Native American who pleaded guilty to child
abuse for driving on a reservation while intoxicated with his
minor son in the car. He entered a guilty plea both before a
tribal court and, after serving his tribal sentence, before a
federal district court. Although child abuse itself is not a
federal offense, federal law incorporates state law offenses
committed by Native Americans on tribal land. After Mr. Jones
pleaded guilty in federal court, the district court imposed a
forty-month sentence. But, as all parties agree, the district
court made a miscalculation, imposing twelve unintended
Jones appeals, asking us to vacate his sentence and to remand
for imposition of the intended sentence. The government
requests that we affirm the erroneous sentence because, it
argues, the miscalculation is harmless due to the district
court's failure to impose a six-year mandatory minimum
sentence. Concluding that the error was not harmless, we
reverse and remand for the district court to correct the
Jones, a member of the Laguna Pueblo Indian Tribe, drove on
tribal land while intoxicated with his six-year-old son in
the car. Mr. Jones pleaded guilty in tribal court to driving
while intoxicated and child abuse and served a one-year
sentence in tribal custody. The federal government then
brought charges against Mr. Jones. In federal court, he
pleaded guilty to one count of child abuse in violation of 18
U.S.C. § 1153(b) and N.M. Stat. § 30-6-1.
sentencing, the district court imposed a forty-two-month
sentence. But both parties now agree the district court made
a calculation error, resulting in a sentence twelve months
longer than the intended sentence. Mr. Jones filed this
appeal, challenging that error. Although the government
concedes the district court erred, it argues the error was
harmless because Mr. Jones is subject to a six-year mandatory
minimum sentence under New Mexico law. That conclusion, the
government argues, is dictated by this court's decision
in United States v. Wood, 386 F.3d 961 (10th Cir.
2004). Mr. Jones disagrees, claiming there is no minimum
mandatory sentence applicable to his crime under New Mexico
law. We agree with Mr. Jones and therefore vacate his
sentence and remand to the district court with instructions
to resentence him.
begin our analysis by agreeing with the parties that the
district court's mathematical error resulted in a
sentence different than the one it intended to impose. Next,
we consider whether any error is harmless. To answer that
question, we first explore the interplay among three distinct
statutory provisions-18 U.S.C. § 13 (the
"Assimilative Crimes Act" or "ACA"), 18
U.S.C. § 1153 (the "Indian Major Crimes Act"
or "IMCA"), and 18 U.S.C. § 3551 of the
Sentencing Reform Act ("Sentencing Act")- and
relevant case law in the federal circuit courts. After that
discussion, we turn to Wood, and explain how New
Mexico's sentencing scheme is different from the Oklahoma
sentencing scheme at issue there. Ultimately, we determine
that Wood does not dictate the result here because
New Mexico does not impose a mandatory minimum sentence on
the crime of conviction. Thus, the district court's error
was not harmless.
The Sentencing Error
crime is committed by an "Indian . . . against the
person or property of another Indian . . . within the Indian
country," the offender is "subject to the same law
and penalties as all other persons committing" that
offense "within the exclusive jurisdiction of the United
States." 18 U.S.C. § 1153(a). But if the crime
committed "is not defined and punished by Federal law .
. . [it] 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." Id.
§ 1153(b). In short, for nonfederal crimes committed on
tribal land, federal law incorporates state criminal law.
Here, New Mexico's child abuse statute, § 30-6-1,
was enforced against Mr. Jones in federal court. And because
there is no federal sentence for child abuse, the court was
required to punish Mr. Jones "in accordance with the
laws of" New Mexico. See 18 U.S.C. §
to sentencing, the United States Probation Office prepared a
Presentence Investigation Report (PSR), that listed a maximum
but not a minimum term of imprisonment for Mr. Jones. Neither
party objected to the omission of a minimum sentence. At the
sentencing hearing, Mr. Jones requested that the district
court sentence him to time served-the twelve months he served
in tribal prison and the nine months he served in presentence
detention-and "up to six months in the halfway house
and intensive outpatient treatment." ROA, Vol. III at 8;
see also Appellant's Br. at 5-6. The government
requested a sixty-month sentence. The district court did not
accept either recommendation.
the district court concluded that Mr. Jones should serve
"an additional nine months" beyond the time he had
already served. ROA, Vol. III at 32. But then, as both
parties agree, the district court made a calculation error.
It sentenced Mr. Jones to forty-two months but reduced his
sentence to forty months by permitting him the good-time
credits he would have received if he had spent his first
twelve months in federal as opposed to tribal custody. The
district court explained its sentencing decision as follows:
"42 months, minus the 12 months . . . already
served" and "the 12 months you've served in
tribal custody, the nine-and-a-half months that you've
served in federal custody, leaves you approximately nine
months." ROA, Vol. III at 32. The district court seems
to have double-counted the twelve months Mr. Jones served in
tribal custody because that twelve-month period was the only
twelve months "already served." Absent this
explanation, we, like the government, "cannot come up
with any equation that starts with 40 or 42 months and
results in 9 months for [Mr.] Jones left to serve."
See Appellee's Br. at 4. Accordingly, we agree
with the parties that the district court made a calculation
error that resulted in a sentence longer than the court
intended to impose.
in circumstances such as these, we would vacate Mr.
Jones's sentence and remand for the district court to
resentence him. But the government argues this avenue is
unavailable because Mr. Jones was subject to a six-year
mandatory minimum sentence under New Mexico law. And because
the erroneous sentence is below six years, the government
argues Mr. Jones cannot show harm. For the reasons we now
explain, we disagree.