United States v. Martinez

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.

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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 childrenSSAaron, Daniel, and Joseph.
This abuse caused Aaron’s death, Daniel’s cat-
astrophic brain damage, and Joseph’s hos-
pitalization.
On the recommendation 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 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 from chronic vomiting
and diarrhea; doctors surgically inserted a
gastric tube to feed him. After extensive test-
ing, 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 analyzed Aaron’s hair 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, feeding intolerance, and
gastrointestinal bleeding. 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 af-
ter Daniel’s cardiac arrest. After Joseph’s pre-
mature 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 hospit-
alized 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

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3
that all three children suffered from a
mitochondrial disorder).
The surgeons performed a gastrostomy, a
fundodoplication, and a tracheostomy and in-
serted a central line. Joseph had difficulty re-
ceiving nutrition through the tube, however,
because his stomach bloated at night. In mid-
November, 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’s trachea site, suffocating him for sixty-
two 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 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, testified that even if a
mitochondrial disorder had caused some of
their symptoms, Ipecac poisoning was respon-
sible 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 experts testified is more 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 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 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 criminal conduct toward Aa-
ron, Daniel, and Joseph, U.S.S.G. Manual

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§ 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.2 In
her plea agreement, she waived the right to
appeal any sentence within the guidelines
range but reserved the right to appeal any de-
parture from the guideline range. If we decide
that imposing consecutive sentences is an en-
hancement under U.S.S.G. § 5G1.2(d), the
terms of the plea agreement may bar 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-ar-
raignment, 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 con-
secutively 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
follow federal sentencing procedures when deciding
cases under the Assimilative Crimes Act). Because
federal 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 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 As-
similative Crimes Act.

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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 counts shall run 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 argues that “total punishment” should
be calculated based on the 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).

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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 rules for multiple 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
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 in Chapter 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 sentences imposed 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 puni shment”
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 jur-
isdiction, the United States can prosecute him
for violations of state law under the ACA.
The act requires federal courts to find the de-
fendant guilty of a “like offense” and to im-
pose 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...)

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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 con-
secutive sentence, when Texas law permitted
only a ten-year concurrent sentence. Although
this court has never directly addressed the
question in the context of concurrent and con-
secutive 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 ex-
plained the 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
theft prosecuted under Texas Penal Code
§ 32.03. We explained that the ACA “assim-
ilat[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.’” 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 federal sentencing statutes. Id. at
96-97.
We described the appropriate inquiry as
whether the defendant would face a penalty
“like” the federal special assessment under
Texas state law. Id. at 97. “Like” implies sim-
ilarity, 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 laws requiring minimum periods
of incarceration 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
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).

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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 plead-
ed guilty to a charge of cashing bad checks
and was sentenced to six months’
imprisonment and a year of supervised release.
We held that the ACA’s “like” requirement
limits 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 pri-
soner’s sentence. Id. Because Texas law pro-
vided for up to ten years’ imprisonment and
parole, we held that the federal sentence sat-
isfied 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
maximum penalties cannot deprive a
magistrate judge of jurisdiction under the
ACA. A magistrate judge found the defendant
guilty of 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 under state 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 Mary-
land 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 cus-
todial 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 fed-
eral courts under the Act.”); United 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 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...)

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9
this rule is that a federal court cannot triple the
length 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 limits the
maximum and minimum punishments available,
the government offers countless reasons to
distinguish concurrent sentencing laws from
statutory minimums and maximumsSSthe ACA
only requires “like” punishment,13 the
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 distinctions should 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
Penal Code 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 considered whether California
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 (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. United States v. Hooka-
no, 957 F.2d 714, 716 (9th Cir. 1992).

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10
eligibility requirements when handing out sen-
tences under the ACA. Id.17
The Eighth Circuit has interpreted the In-
dian Major Crimes Act as requiring district
courts to follow the sentencing guidelines,
rather than state law, when choosing between
consecutive and concurrent sentences. Nor-
quay, 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 ig-
nore under the ACA, id., and explained its
concern that application of state law regulating
consecutive versus concurrent sentencing
“would be disruptive to the federal prison
system,” id. at 1163.
The decision whether to assimilate the Tex-
as concurrent sentencing law should turn on
the relative persuasiveness of Leake and Nor-
quay. 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 con-
current sentencing requirements and good be-
havior credits for time served in the same sec-
tion of its analysis. Id. at 1162-63. Good be-
havior 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 laws that have very different
implications for the internal operations of a
17 In an ambiguous decision, the Fourth Circuit
used the sentencing guidelines to determine whether
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).

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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 cor-
rectional 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
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 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 of sentences when a con-
flict 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. Penal Code § 3.03 would require the sen-
tences 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...)

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12
centers on whether, by accepting the plea bar-
gain, Lyda waived her statutory right to con-
current sentences. The district court and par-
ties rely on Ex Parte McJunkins, 954 S.W.2d
39 (Tex. Crim. App. 1997), to define the ele-
ments 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
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 po-
tentially could 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 pre-
served 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 stat-
utory 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 de-
fendant 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
improperly cumulated burglary sentences. 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 colloquy merely ensures that
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.

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13
the defendant understands the “maximum
possible penalty” he faces under a plea.23 In-
formation 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 thirty-
two-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 stat-
utory 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 resentenc-
ing 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).

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