Bad result for the defendant in an ACA case

United States v. Polk, 61 F.4th 1277 (10th Cir. 2023) Holding: A defendant convicted under the Assimilative Crimes Act (ACA) is not eligible for state-law safety valves that “conflict” with federal sentencing policy. Mr. Polk was charged federally for driving under the influence by way of the Assimilative Crimes Act (ACA). Mr. Polk is Native American, and the DUI occurred in Oklahoma on reservation land. He pleaded guilty. The mandatory minimum in Oklahoma for this offense is 4 years with a maximum of 20 years. However, in Oklahoma there is also a “safety valve” law that allows a sentencing judge to go below the statutory minimum in a variety of circumstances, which is much broader than the safety valves available under federal sentencing law. Mr. Polk argued that he should be eligible for this safety valve. The district court denied his request on the ground that the safety valve did not agree with federal sentencing law. The ACA covers criminal conduct in federal land that is not covered by its own federal statute. It “generates a federal offense using the laws of the state in which the reservation is located,” borrowing from state law to fill in the gaps. It requires that the defendant receive a punishment “similar” to the one they would receive in state court. Typically, this means that the sentence should be within the minimum/maximum range, but it doesn’t mean that the federal district court must adhere to every convention or rule of state sentencing law. And if Congress has created a “contrary penal policy,” the district court is bound to follow that. To the extent that there is a “conflict,” federal law wins. Here, the district court and the appellate court both focused on the fact that § 3553 only provides for two grounds upon which federal sentencing judges may go below the statutory minimum: subsections (e) and (f) (for substantial assistance and when the conviction is for certain listed drug offenses and satisfies five factors) neither of which was relevant here. The Tenth Circuit called this a “direct tension between what state law permits and what federal law forbids.” As a result, Mr. Polk was not eligible for Oklahoma’s safety valve. Question: Is it actually a “direct conflict” where one law is more expansive that another? And strict adherence to federal sentencing doesn’t seem like the answer if the overarching goal aim of the ACA is to keep things consistent with what would happen in the state system. The federal sentencing scheme is not designed to address an offense like a DUI, so it makes sense that it doesn’t set forth a safety valve that would capture that kind of conduct. It sounds like Mr. Polk focused on the fact that § 3553 doesn’t mention the ACA (inferring that Congress would have explicitly excluded if it wanted to), and the court insisted the failure to mention it meant just the opposite. This ruling seemingly puts into question an issue previously won by the defense in the District of New Mexico, too, which is the applicability of the NM law allowing for mitigation of the basic sentence in cases where the defendant is convicted and sentenced under state law pursuant to the Assimilative Crimes Act.