United States v. Avinell Leake

OVERVIEW

Appellant Avinell Leake was charged by information with twenty-nine counts of passing forged checks at areas within federal jurisdiction, in violation of 18 U.S.C. § 13 (1988) and Cal. Penal Code § 470 (a) (West Supp.1990). She pleaded guilty to three counts. A magistrate sentenced her to one year on each count, to be served consecutively. The district court affirmed the sentence.

Leake attacks the legality and length of her sentence. Our jurisdiction is derived from 28 U.S.C. § 1291 (1982). We vacate the sentence and remand for resentencing.

DISCUSSION

1. Sentence Comparable to the State Sentence

Leake first argues that since she was charged under the Assimilative Crimes Act, 18 U.S.C. § 13 , she must be sentenced to a period of time comparable to that which a state court would impose in the locale of the federal enclave which was the scene of the crime.

It is true, of course, that section 13 provides that those convicted of offenses charged under section 13 shall be subject “to a like punishment.” Thus, we have held that “[the] state statute ... fixes the length of the sentence imposed by federal courts under the Assimilative Crimes Act.” United States v. Smith,…