United States of America v. Dat Quoc Do

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAT QUOC DO,
Defendant-Appellant.
No. 19-30138
D.C. No.
3:17-cr-00431-SI-1
OPINION
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted December 8, 2020
Seattle, Washington
Filed April 19, 2021
Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Barbara Jacobs Rothstein,*
District Judge.
Opinion by Judge McKeown
* The Honorable Barbara Jacobs Rothstein, United States District
Judge for the Western District of Washington, sitting by designation.

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2 UNITED STATES V. DO
SUMMARY**
Criminal Law
The panel reversed the defendant’s convictions for two
counts of unlawful use of a weapon (UUW) under Oregon
law, Or. Rev. Stat. § 166.220(1)(a), which federal
prosecutors assimilated into federal law by the Assimilative
Crimes Act (ACA), 18 U.S.C. § 13(a); and remanded for
further proceedings.
The defendant, a passenger in a car on a highway in the
Warm Springs Indian Reservation, fired six shots in the air
after a passenger in a car in front of him threw a plastic bottle
at his car.
The panel addressed whether the government was
permitted to borrow from Oregon law in this way, applying
the two-part test set out in Lewis v. United States, 523 U.S.
155 (1998), for determining whether the ACA assimilates a
particular state criminal law. As to the first part, the panel
agreed with the parties that the defendant’s conduct is
punishable under the federal assault statute, 18 U.S.C.
§ 113(a). Because the conduct is punishable under the
federal assault statute, the panel next asked whether the
federal assault statute precludes application of Oregon’s
UUW statute. The panel concluded that it does because
(1) the federal assault statute and Oregon’s UUW statute
seek to punish approximately the same wrongful behavior;
(2) the federal assault statute reveals an intent to occupy the
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. DO 3
field of assault to the exclusion of Oregon’s UUW statute;
and (3) assimilating Oregon’s UUW assault statute into
federal law would effectively rewrite an offense definition
that Congress carefully considered.
COUNSEL
Elizabeth G. Daily (argued), Assistant Federal Public
Defender; Gerald M. Needham, Federal Public Defender;
Office of the Federal Public Defender, Portland, Oregon; for
Defendant-Appellant.
Amy E. Potter (argued), Appellate Chief; Suzanne Miles,
Assistant United States Attorney; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
This appeal arises from a road rage incident on a
highway in the Warm Springs Indian Reservation in central
Oregon. Dat Quoc Do, who was a passenger in a car driven
by his girlfriend, fired six shots in the air after a passenger in
the car in front of him threw a plastic soda bottle at his car.
Rather than charge Do under the federal assault statute,
federal prosecutors invoked the Assimilative Crimes Act
(“ACA” or “the Act”), 18 U.S.C. § 13(a), and assimilated
into federal criminal law Oregon’s unlawful use of a weapon
(“UUW”) statute, Or. Rev. Stat. § 166.220(1)(a). Do was
tried and convicted in federal court of violations of Oregon
law.

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4 UNITED STATES V. DO
The question before us is whether the government was
permitted to borrow from Oregon law in this way. We
conclude that it was not because assimilation is permitted
only where necessary to fill gaps in federal criminal law on
federal enclaves, and there was no such gap here. We
reverse Do’s convictions under Oregon’s UUW statute and
remand for proceedings consistent with this opinion. In view
of this reversal, we do not consider Do’s other arguments on
appeal.
BACKGROUND
While Do and his girlfriend, Thao Tran, were driving
through the Warm Springs Indian Reservation on a single-
lane highway, a car driven by AV1 pulled out in front of
them.1 AV1 was driving slowly, and Tran began tailgating
her car. AV1 and AV2 proceeded to gesture at Tran,
including flashing their middle fingers. AV2 then leaned out
of the car window and threw a plastic soda bottle at Tran’s
car.
Do then pulled a gun from his backpack, lowered his
window, and fired three shots “toward the sky.” The cars
then reached the passing lane, and Tran pulled into the left
lane to pass AV1’s car. As Tran overtook AV1’s car, Do
again rolled down his window and fired his gun three times.
Do was charged with two counts of UUW under Oregon
law, assimilated into federal law by the ACA. Before trial,
Do filed a motion to dismiss the indictment, arguing that the
1 To protect the identities of the victims, Do and the government
agreed to refer to them with anonymous designations. Throughout this
opinion, we adopt the convention used by the government and the district
court and refer to the victims as Adult Victim 1 (“AV1”) and Adult
Victim 2 (“AV2”).

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UNITED STATES V. DO 5
federal assault statute precluded assimilation of Oregon’s
UUW statute under the ACA. After the district court denied
this motion, Do proceeded to trial on the UUW charges, and
the jury returned guilty verdicts on both counts. The district
court sentenced Do to probation for a term of three years.
Do timely appealed.
ANALYSIS
The ACA provides that, in places under federal
jurisdiction—including Indian country—a person who
is guilty of any act or omission 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(a); see also United States v. Smith, 925 F.3d
410, 415 (9th Cir. 2019) (holding that the ACA applies to
Indian country). In other words, the ACA “assimilates into
federal law, and thereby makes applicable on federal
enclaves . . . certain criminal laws of the State in which the
enclave is located.” Lewis v. United States, 523 U.S. 155,
158 (1998). Its “basic purpose” is thus “one of borrowing
state law to fill gaps in the federal criminal law that applies
on federal enclaves.” Id. at 160. In doing so, the Act
“promotes the even-handed application of state law to local
conduct that the federal law does not punish and, but for the
situs being a federal enclave, would qualify as a local

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6 UNITED STATES V. DO
offense.” United States v. Waites, 198 F.3d 1123, 1127 (9th
Cir. 2000).
Using the ACA, the government charged Do with
violating Oregon’s UUW statute,2 which, in relevant part,
punishes “[a]ttempt[ing] to use unlawfully against another
. . . any dangerous or deadly weapon.” Or. Rev. Stat.
§ 166.220(1)(a). Whether the ACA properly assimilates
Oregon’s UUW statute is a question of law that we review
de novo. United States v. Souza, 392 F.3d 1050, 1052 (9th
Cir. 2004).
In determining whether the ACA assimilates a particular
state criminal law, we apply the two-part test set out in Lewis
v. United States. See 523 U.S. at 164–66. First, we ask
whether the “defendant’s ‘act or omission [is] made
punishable by any enactment of Congress.’” Id. at 164
(quoting 18 U.S.C. § 13(a)). “If the answer to this question
is ‘no,’ that will normally end the matter,” and the “ACA
presumably would assimilate the statute.” Id. If, however,
the answer to this first question is “yes,” we then ask a
second question: “whether the federal statutes that apply to
the ‘act or omission’ preclude application of the state law in
question.” Id. This second question is primarily one of
legislative intent and requires us to probe whether the
2 Though we use the term “Oregon’s UUW statute” throughout this
opinion, we refer only to the “attempts to use” prong of subsection (1)(a)
of that statute. See Or. Rev. Stat. § 166.220(1)(a); see also United States
v. Willis, 795 F.3d 986, 995 (9th Cir. 2015) (concluding that subsection
(1)(a) of Oregon’s UUW statute is divisible into two separate offenses:
“(1) attempting to use a deadly weapon unlawfully against another (the
‘attempt offense’), and (2) carrying or possessing a deadly weapon with
intent to use it unlawfully (the ‘possession offense’)”). Neither
subsection (1)(a)’s “possession” prong nor subsection (1)(b)’s
prohibition on discharging a weapon within city limits is at issue here.

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UNITED STATES V. DO 7
“applicable federal law indicate[s] an intent to punish
conduct such as the defendant’s to the exclusion of the
particular state statute at issue.” Id. at 166.
Though there are no “automatic general answer[s]” to
this second question, id. at 165, the assimilation of state law
is precluded:
(1) where state law “would interfere with the
achievement of a federal policy”; (2) where
“state law would effectively rewrite an
offense definition that Congress carefully
considered”; and (3) where “federal statutes
reveal an intent to occupy so much of a field
as would exclude use of the particular state
statute at issue.”
Souza, 392 F.3d at 1052–53 (quoting Lewis, 523 U.S.
at 164–65). Lewis further instructs that the assimilation of
state law will “obvious[ly]” be precluded “where both state
and federal statutes seek to punish approximately the same
wrongful behavior,” and differences between the two
“reflect jurisdictional, or other technical, considerations” or
“amount only to those of name, definitional language, or
punishment.” Lewis, 523 U.S. at 165.
I. Do’s Conduct is Made Punishable by the Federal
Assault Statute
Applying Lewis’s two-part test here, we ask first whether
Do’s conduct is made punishable by any enactment of
Congress. On this point, there is no dispute. We agree with
the parties that Do’s conduct is punishable under the federal
assault statute.

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8 UNITED STATES V. DO
The federal assault statute, as amended in 2013, punishes
eight different forms of assault, including, as relevant here,
“[a]ssault with a dangerous weapon, with intent to do bodily
harm” and “[s]imple assault.” 18 U.S.C. § 113(a)(3), (5).
The statute incorporates the common-law definition of
assault as (1) “a willful attempt to inflict injury upon the
person of another,” or (2) “a threat to inflict injury upon the
person of another which, when coupled with an apparent
present ability, causes a reasonable apprehension of
immediate bodily harm.” United States v. Lewellyn,
481 F.3d 695, 697 (9th Cir. 2007) (quoting United States v.
Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976)).
Do’s conduct of firing his gun six times while tailgating
and subsequently passing AV1’s car is undoubtedly
punishable as simple assault under 18 U.S.C. § 113(a)(5) and
may also be punishable as assault with a dangerous weapon
under 18 U.S.C. § 113(a)(3) if Do possessed the requisite
intent to do bodily harm.
II. The Federal Assault Statute Precludes Application of
Oregon’s UUW Statute
Because Do’s conduct is punishable under the federal
assault statute, we next ask whether that statute precludes
application of Oregon’s UUW statute. We conclude that it
does for three reasons: first, the federal assault statute and
Oregon’s UUW statute “seek to punish approximately the
same wrongful behavior,” Lewis, 523 U.S. at 165; second,
the federal assault statute “reveal[s] an intent to occupy” the
field of assault to the exclusion of Oregon’s UUW statute,
id. at 164; and third, assimilating Oregon’s UUW statute into
federal law would “effectively rewrite an offense definition
that Congress carefully considered,” id.

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UNITED STATES V. DO 9
A. The Federal Assault Statute and Oregon’s UUW
Statute Seek to Punish the Same Wrongful
Behavior
Though named differently, the federal assault statute and
Oregon’s UUW statute target approximately the same
wrongful conduct—assault. See Lewis, 523 U.S. at 165. As
discussed above, the federal assault statute incorporates the
common-law definition of assault, criminalizing both
attempts and threats to inflict injury. See Lewellyn, 481 F.3d
at 697. Oregon’s statute likewise incorporates the common-
law definition of assault, criminalizing both the infliction of
harm or injury and the threat of immediate harm or injury.
See State v. Ziska, 334 P.3d 964, 970 (Or. 2014) (en banc)
(interpreting Oregon’s UUW statute as criminalizing the
“employment of a weapon to inflict harm or injury,” as well
as the “employment of a weapon to threaten immediate harm
or injury” (emphasis added)).
That Oregon’s statute criminalizes assault is underscored
by the fact that, under Oregon law, convictions for assault
and UUW merge into one another. See, e.g., State v.
Zolotoff, 280 P.3d 396, 397 (Or. Ct. App. 2012); State v.
Ryder, 216 P.3d 895, 896–97 (Or. Ct. App. 2009). Because
both the federal and state statutes punish “approximately the
same wrongful behavior,” the federal assault statute
precludes application of Oregon’s UUW statute.
The government views the statutes from a different
perspective, namely that they do not seek to punish
approximately the same wrongful behavior because the
Oregon legislature wrote the UUW statute to target weapon
use, not general assaults. Oregon’s legislative intent is
evident, according to the government, in the statute’s
placement in the “Offenses Against Public Order” chapter,
rather than in the “Offenses Against Persons” chapter, where

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10 UNITED STATES V. DO
other assault statutes are located. But the focus on the
Oregon legislature obscures the relevant inquiry. While the
Lewis test requires courts to discern legislative intent, it is
the intent of Congress—not the Oregon legislature—that is
relevant to this inquiry. And, even if the Oregon
legislature’s intent were relevant, the government concedes
that the “ultimate legislative concern of [the UUW statute]
is preventing harm to persons.” State v. Crawford, 171 P.3d
974, 980 (Or. Ct. App. 2007) (emphasis added).
The government also insists that Oregon’s UUW statute
addresses a more specific concern than the federal assault
statute and thus “properly fill[s] a gap in federal law by
punishing . . . specific behavior” that the general federal
assault statute does not address. United States v. Rocha,
598 F.3d 1144, 1151 (9th Cir. 2010) (emphasis added). Not
so. Both the federal assault statute and Oregon’s UUW
statute punish assault with a dangerous weapon. Compare
18 U.S.C. § 113(a)(3), with Or. Rev. Stat. § 166.220(1)(a).
Because Oregon’s UUW statute does not punish any
“specific behavior” not already proscribed by the federal
assault statute, the UUW statute fills no gap.
B. The Federal Assault Statute Occupies the Field of
Assault to the Exclusion of Oregon’s UUW
Statute
The federal assault statute also “reveal[s] an intent to
occupy so much of [the] field as would exclude use” of
Oregon’s UUW statute. Lewis, 523 U.S. at 164. As we
concluded in United States v. Rocha, “the federal assault
statute’s comprehensive definitions reveal Congress’s intent
to fully occupy the field of assault on a federal enclave.”
598 F.3d at 1150 (emphasis added). This conclusion is of
even more force here, as the federal assault statute in effect
when Do was charged—and that remains in effect today—is

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UNITED STATES V. DO 11
even more comprehensive than the earlier version at issue in
Rocha. Compare 18 U.S.C. § 113(a) (2019) (criminalizing
eight different forms of assault), with id. (2005)
(criminalizing seven different forms of assault). Because the
“comprehensive nature of the federal assault statute reveals
that Congress intended to occupy the field of assault at the
exclusion of [state assault statutes],” and Oregon’s UUW
statute criminalizes assaultive conduct, we easily conclude,
as we did in Rocha, that the federal assault statute precludes
the state statute’s application. See Rocha, 598 F.3d at 1151
(emphasis added) (concluding that the federal assault statute
intended to occupy the field of assault at the exclusion of
California’s assault statute).
The government claims that Rocha is inapposite because
there we concluded that the federal assault statute occupies
the field of assault crimes, and Oregon’s UUW statute is not
an assault statute. This argument elevates form over
substance in a way Lewis cautions against. See Lewis,
523 U.S. at 165 (noting that “differences amount[ing] only
to those of name, definitional language, or punishment”
cannot justify assimilation of a state law offense). Though
not labeled an assault statute, Oregon’s UUW statute mirrors
the common-law definition of assault and criminalizes
assaultive conduct, as the government concedes.
The government also argues that Rocha illustrates that
courts most often reject assimilation where the state and
federal statutes at issue are direct analogues. But, as Lewis
instructs and our precedent well demonstrates, assimilation
may be precluded even where state and federal statutes are
not direct analogues, so long as the state statute punishes
approximately the same conduct. See Waites, 198 F.3d
at 1129 (concluding that Oregon’s criminal trespass statute
could not be assimilated into federal law because it punished

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12 UNITED STATES V. DO
the same wrongful behavior as a federal regulation
prohibiting noncompliance with directions on postal
property). Oregon’s UUW statute does just that.
C. Assimilating Oregon’s UUW Statute Would
Rewrite the Federal Assault Statute’s Offense
Definitions
Finally, assimilating Oregon’s UUW statute into federal
law would “effectively rewrite an offense definition that
Congress carefully considered.” Lewis, 523 U.S. at 164.
The federal assault statute reflects policy judgments made by
Congress as to what forms of assaultive conduct should be
punishable under federal law and to what extent. See Rocha,
598 F.3d at 1150 (“Although there are other formulations
Congress might have adopted, in § 113 Congress addressed
key policy questions . . . .”). Under federal law, assault with
a dangerous weapon, which carries a maximum sentence of
10 years, requires that the defendant had an “intent to do
bodily harm.” 18 U.S.C. § 113(a)(3) (emphasis added). If
the government believed it could not prove that Do had such
an intent—which it conceded at oral argument—then, under
federal law, it could charge him only with simple assault,
which carries a maximum sentence of six months. See id.
§ 113(a)(5). By contrast, Oregon’s UUW statute, which
carries a maximum sentence of 5 years, does not require the
government to prove an intent to do bodily harm. See Or.
Rev. Stat. § 166.220(1)(a); see also Or. Rev. Stat.
§ 161.605(3) (setting 5 years as the maximum sentence for a
Class C felony).
The disparity in punishment presented a dilemma for the
government. Rather than settling for simple assault’s six-
month maximum sentence, the government availed itself of
the state statute’s higher statutory maximum. Explaining
this strategy, the government noted: “The government had

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UNITED STATES V. DO 13
two choices: one, charge a misdemeanor assault or . . .
charge the most appropriate state statute . . . .”). In
responding to the query, “The reason why you did this and
created this problem for yourself is because you wanted the
higher statutory max?”, the government replied,
“Absolutely.” But the ACA is not intended to operate in this
pick-and-choose way. The Act’s application is predicated
on analysis of the federal statute, not a prosecutorial desire
to obtain a higher sentence.
Rocha admonishes that where the two statutes punish the
same wrongful behavior, the government may not “bypass[]
. . . lesser sentence charges” under the federal statute by
using a state statute with a higher maximum term of
imprisonment. Rocha, 598 F.3d at 1152. Doing so would
impermissibly rewrite the Congressional framework of
crime and punishment.
CONCLUSION
We reverse Do’s convictions because Oregon’s UUW
statute was improperly assimilated under the ACA.
REVERSED and REMANDED for proceedings
consistent with this opinion.

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