United States v. Michael J. Bear

concurring in the judgment:

I concur in the judgment of the court but not for the reasons given.

Bear was convicted of burglary in violation of the Indian Major Crimes Act, 18 U.S.C. § 1153 (1988). The Major Crimes Act makes burglary committed by an Indian within “Indian country” a federal crime. See 18 U.S.C. § 1153 (1988). Section 1153, however, does not set forth the elements of the crime of burglary. Instead, section 1153 adopts the otherwise applicable state law, in this case, Idaho Code §§ 18-1401 and 18-1402 (1987). However, the issue remains as to which sentencing statute should govern Bear’s sentence — Idaho law or the United States Sentencing Guidelines.

The Sentencing Reform Act, 18 U.S.C. § 3551 , states that the Sentencing Guidelines apply:

(emphasis added). The court concludes that the Guidelines do not apply to a violation of the Major Crimes Act because the Major Crimes Act does not set forth the elements of robbery but instead incorporates the statutory requirements of robbery as defined by otherwise applicable state law. The court goes on to state that section 1153 has failed to “describe” robbery within the meaning of section 3551.

I am not surprised that…

932 F.2d 1279 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BEAR, Defendant-Appellant. No. 89-30200. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 11, 1990. Decided Sept. 26, 1990. As Amended on Denial of Rehearing and Rehearing En Banc May 15, 1991. Robert L. Brower, Lewiston, Idaho, for defendant-appellant. Joanne P. Rodriguez, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee. Appeal from the United States District Court for the District of Idaho. Before WALLACE, HALL and WIGGINS, Circuit Judges. WALLACE, Chief Judge: 1 Bear appeals his conviction for burglary pursuant to 18 U.S.C. Sec. 1153 . He contends that the district court erred by sentencing him under the federal Sentencing Guidelines (Guidelines) rather than under Idaho sentencing law. The district court possessed jurisdiction pursuant to 18 U.S.C. Sec. 1153 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291 . We vacate Bear's sentence and remand to the district court for resentencing under Idaho law. 2 * On December 16, 1988, a federal grand jury indicted Bear, an Indian, for second degree burglary of a residence within the Nez Perce Indian…

Bear appeals his conviction for burglary pursuant to 18 U.S.C. § 1153 . He contends that the district court erred by sentencing him under the federal Sentencing Guidelines (Guidelines) rather than under Idaho sentencing law. The district court possessed jurisdiction pursuant to 18 U.S.C. § 1153 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We vacate Bear’s sentence and remand to the district court for resentencing under Idaho law.

I

On December 16, 1988, a federal grand jury indicted Bear, an Indian, for second degree burglary of a residence within the Nez Perce Indian Reservation. The indictment charged Bear with violating 18 U.S.C. § 1153 and Idaho Code §§ 18-1401 and 18-1402 (1987). On March 23, 1989, a jury convicted Bear and, pursuant to the Guidelines, the district court sentenced Bear to 40 months in custody and a three-year term of supervised release. The court calculated this sentence based upon section 2B2.1 of the Guidelines, which applies to burglary of a residence. See United States Sentencing Commission, Guidelines Manual, § 2B2.1 (1988).

II

We review the district court’s application of the Guidelines de novo. United States v.…