No. 16-1200, 16-1201

July 6, 2017 (Date Decided)

Judge Cowen

FOR APPELLANT: Mark E. Coyne and John F. Romano (Office of United States Attorney).

FOR APPELLEES: Rubin M. Sinins and Herbert I. Waldman (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins); Louise Arkel, Carol Gillen, and David A. Holman (Office of the Federal Public Defender).

The government appealed the sentences imposed on defendants John and Carolyn Jackson following their convictions for endangering the welfare of children and conspiracy, under New Jersey state criminal laws “assimilated” into federal law pursuant to the Assimilative Crimes Act. Defendants’ convictions stemmed from allegations that they inflicted cruel and unnecessary abuse and neglect upon their three adopted children. The probation office used the offense guidelines for assault and aggravated assault, and calculated defendants’ guidelines range as 210 to 262 months. The government sought sentences of 235 months for Carolyn and 188 months for John. However, the district court declined to calculate a guidelines sentence, and instead imposed sentences of 24 months’ imprisonment for Carolyn, and three years’ probation for John.

On appeal, the government challenged the district court’s failure to apply the sentence guidelines for assault. The court first noted that because the state law criminal offense defendants were convicted of was “assimilated” into gaps in federal criminal law, the district court had to determine a sufficiently analogous offense for guideline purposes. The court agreed with the parties that the “elements-based” approach was the proper test for determining a sufficiently analogous offense, and further agreed with the government that the assault guideline was sufficiently analogous to defendants’ conviction. The court found, under the elements-based approach, that endangerment of the welfare of children, although covering a wide range of both affirmative acts and acts of omission, contained all the analogues of the federal assault offense. Accordingly, the court ruled that the district court erred in concluding that federal assault was not sufficiently analogous to defendants’ offense, and ruled that defendants’ convictions would be remanded for resentencing.

The court further ruled that the district court erred during sentencing by failing to make findings of fact by a preponderance of the evidence with respect to the guideline calculations and the application of the statutory sentencing factors to defendants’ sentences. Finally, the court ruled that defendants’ sentences had to be vacated and remanded for resentencing upon determining that no rational court would have imposed the sentences the district court imposed upon defendants for conduct involving the severe abuse and neglect of minor children.

In a dissenting opinion, Judge McKee concurred with the district court’s conclusion that assault was not a sufficiently analogous offense to defendants’ conviction. Judge McKee further argued that the district court’s sentence was rationally based upon defendants’ offense of conviction, rather than being influenced by the serious allegations in the complaint underpinning charges for which defendants were acquitted.