“Like Punishment” Under the ACA Permits Supervised Release After a State‑Maximum Prison Term

United States v. Flores, No. 23‑50128 (5th Cir. Mar. 4, 2025)

Introduction

In United States v. Flores, the Fifth Circuit squarely resolved a long‑reserved question in its Assimilative Crimes Act (ACA) jurisprudence: whether a federal court sentencing under the ACA may impose supervised release after imposing the state‑law maximum term of imprisonment, even though the assimilated state’s law does not itself contemplate supervised release and caps incarceration. Writing for the panel, Judge Priscilla Richman held that the ACA’s “like punishment” requirement permits a term of supervised release to follow a sentence of imprisonment up to the state maximum. In doing so, the court aligned itself with the Fourth, Eighth, Ninth, and Eleventh Circuits and clarified the scope of its earlier decision in United States v. Marmolejo.

The case arose from a child endangerment offense under Texas Penal Code § 22.041 committed on federal land (Big Bend National Park), thereby triggering the ACA. After a federal jury conviction, the district court initially imposed five years of probation. Upon a Grade B violation (drug possession/use), the court revoked probation and resentenced Hector Flores to 24 months’ imprisonment—the Texas maximum for a state jail felony—followed by one year of supervised release. Flores appealed only the additional supervised release, arguing that it exceeded the punishment state law authorizes. The Fifth Circuit affirmed.

Summary of the Opinion

The Fifth Circuit held that supervised release may be imposed following a maximum term of state‑law incarceration in ACA cases, because:

• The ACA requires a “like punishment,” not the identical state sentence; federal courts look to state law for incarceration ranges but sentence within the federal framework and policy.
• Supervised release is not imprisonment; adding supervised release to a maximum prison term does not violate a statutory cap on imprisonment.
• Supervised release serves rehabilitative and reintegrative purposes consistent with federal sentencing policy.
• United States v. Haymond does not bar such supervised release; Justice Breyer’s controlling concurrence applies, and the discretionary regime of § 3583(e) (unlike § 3583(k)) raises no Sixth Amendment problem.

The court expressly joined four circuits and announced the rule that the ACA “does not preclude a combined term of imprisonment and supervised release from exceeding the maximum term of incarceration permitted under state law.” The panel did not decide whether, if supervised release were later revoked, any additional imprisonment could exceed the state maximum incarceration cap.

Detailed Analysis

Precedents Cited and Their Influence

• UNITED STATES v. SHARPNACK, 355 U.S. 286 (1958): The Supreme Court affirmed Congress’s basic policy to conform federal enclave criminal law to local law for offenses not otherwise federally penalized. This case anchors the ACA’s function of borrowing state substantive offenses and punishments to promote parity on federal enclaves.

• United States v. Davis, 845 F.2d 94 (5th Cir. 1988): The Fifth Circuit emphasized that the ACA calls for “like punishment,” which implies similarity, not identity. Whether a punishment is “like” is evaluated case‑by‑case with attention to federal policy concerns. Davis supplies the interpretive lens through which the court evaluates assimilation and sentencing compatibility.

• United States v. Teran, 98 F.3d 831 (5th Cir. 1996), and United States v. Martinez, 274 F.3d 897 (5th Cir. 2001): These decisions recognize the dual guideposts in ACA sentencing: (1) state law sets the outer incarceration range, and (2) federal sentencing guidelines and policy statements guide the federal court’s sentencing choices within that range. The point is to avoid “two classes” of federal prisoners—those sentenced under federal guidelines and those sentenced under state procedures through the ACA.

• United States v. Marmolejo, 915 F.2d 981 (5th Cir. 1990): The court held that supervised release can be “like” state parole and allowed a sentence of imprisonment plus supervised release, at least where the combined term did not exceed the maximum sentence allowable under state law. Critically, Marmolejo expressly left open whether supervised release could be imposed when it would exceed the state’s maximum prison term. Flores answers that open question.

• United States v. Butler, 895 F.2d 1016 (5th Cir. 1989): The court rejected the argument that adding supervised release to a maximum jail term exceeds the statutory maximum, reasoning that supervised release is not imprisonment. This principle is central to Flores’s holding that the added supervised release did not violate the state incarceration cap.

• United States v. Johnson, 529 U.S. 53 (2000): The Supreme Court recognized supervised release as serving rehabilitative ends distinct from incarceration and as a key component of federal sentencing policy to aid reintegration. Flores relies on this federal policy rationale to hold that supervised release may follow a state‑maximum term of imprisonment in ACA cases.

• United States v. Haymond, 139 S. Ct. 2369 (2019): The plurality held 18 U.S.C. § 3583(k)’s mandatory minimum reimprisonment scheme unconstitutional under the Sixth Amendment. Applying MARKS v. UNITED STATES, the Fifth Circuit treated Justice Breyer’s narrower concurrence as controlling: the constitutional problem with § 3583(k) does not extend to ordinary § 3583(e) revocations, which remain discretionary and tethered to the original conviction. Flores thus finds no constitutional impediment to supervised release here.

• Sister-circuit authorities: United States v. Pierce, 75 F.3d 173 (4th Cir. 1996); UNITED STATES v. BURKE, 113 F.3d 211 (11th Cir. 1997) (per curiam); UNITED STATES v. ENGELHORN, 122 F.3d 508 (8th Cir. 1997); and UNITED STATES v. RAPAL, 146 F.3d 661 (9th Cir. 1998). These cases collectively hold that the ACA permits a combined term of imprisonment and supervised release to exceed the state’s maximum term of incarceration. Flores expressly joins this consensus.

Legal Reasoning

The court’s reasoning proceeds in three primary steps:

1. “Like punishment” means similarity, not identity. Congress amended the ACA in 1909 to require “a like punishment” rather than “the same punishment.” The Fifth Circuit’s ACA line (Davis, Marmolejo, Teran, Martinez) treats state law as setting the incarceration range while preserving federal sentencing structures and policy. Thus, even though Texas law provides for parole rather than supervised release, federal supervised release is sufficiently analogous to satisfy the “like punishment” mandate.

2. Supervised release is not imprisonment. Echoing Butler and the Supreme Court’s discussion in Johnson, the opinion reiterates that supervised release serves rehabilitative ends and does not extend a defendant’s imprisonment. Here, Flores received the state‑maximum of two years’ imprisonment; adding one year of supervised release did not change his maximum imprisonment exposure for this sentencing event. The court therefore rejects the argument that adding supervised release exceeds the state’s cap on incarceration.

3. Federal sentencing policy supports post‑release supervision, and Haymond poses no obstacle. Section 3553(a) directs sentencing courts to consider Sentencing Commission policies, including supervised release as a tool to assist reintegration. As to Flores’s reliance on Haymond, the court explains that Justice Breyer’s controlling concurrence limits Haymond’s holding to the mandatory‑minimum, offense‑specific features of § 3583(k). Ordinary supervised release under § 3583(e) (and, by analogy here, resentencing after probation revocation under § 3565) remains discretionary and bounded by the original offense class, thus raising no Sixth Amendment concerns.

The court clarifies two additional points:

• The standard of review is de novo because the claim is that the sentence exceeds the statutory maximum under the ACA.
• The court does not decide whether a later revocation of supervised release could authorize additional imprisonment that, when added to the original two years, would exceed the state’s incarceration cap. That question remains open in the Fifth Circuit.

Impact and Practical Implications

Flores is significant in at least five ways:

1. Alignment with a national consensus. The Fifth Circuit now joins the Fourth, Eighth, Ninth, and Eleventh Circuits in holding that the ACA permits imposition of supervised release even when the combined term of imprisonment and supervised release exceeds the state’s maximum incarceration term. This closes a doctrinal gap left by Marmolejo and promotes uniform federal sentencing on enclaves.

2. Sentencing architecture in ACA cases. Federal courts in ACA prosecutions should:

   • Use the assimilated state statute to fix the minimum and maximum range of imprisonment;
   • Apply federal sentencing law and policy (including the advisory Guidelines and Chapter 7 policy statements) to select a sentence;
   • Impose supervised release consistent with federal law (for a Class E felony, up to one year under 18 U.S.C. § 3583(b)(3)), even if state law offers parole rather than supervised release.

3. Reentry and public safety. The holding underscores Congress’s policy that post‑incarceration supervision aids rehabilitation and reintegration, particularly important where probation has failed. Federal courts on enclaves are not hamstrung by state parole structures that do not map neatly onto federal supervision.

4. Remaining open question. Defense counsel should note that the Fifth Circuit did not resolve whether later revocation of supervised release could produce additional custody beyond the state’s maximum incarceration cap. Several sister circuits have permitted reimprisonment upon supervised release revocation in ACA cases, even where that increases total custody time; Flores hints but does not decide this issue. Expect further litigation on that specific question in the Fifth Circuit.

5. Probation‑revocation mechanics. Because Flores’s probation revocation was mandatory under 18 U.S.C. § 3565(b) upon drug possession, the case also illustrates that the ACA does not insulate defendants from federal revocation rules. After revocation, resentencing proceeds under federal law, including the possibility of supervised release.

Complex Concepts Simplified

• Assimilative Crimes Act (ACA), 18 U.S.C. § 13: A statute that borrows state criminal laws for conduct committed on federal enclaves (e.g., national parks) when no federal statute specifically covers the conduct. It seeks to harmonize enclave and local law.

• “Like punishment” vs. “same punishment”: Since 1909, the ACA requires “like” punishment—similar, not identical. Federal courts apply state incarceration ranges but sentence within a federal framework, including supervised release.

• Parole vs. supervised release: Parole is an early‑release mechanism administered by a parole authority under state law. Supervised release is a distinct federal post‑imprisonment term imposed by a court at sentencing to aid reentry. They are functionally analogous for ACA “like punishment” purposes.

• Probation vs. supervised release: Probation is an alternative to incarceration imposed at initial sentencing. Supervised release follows a term of imprisonment. Violations of either can result in revocation and additional consequences under federal statutes.

• Standard of review—statutory maximum claims: Whether a sentence exceeds the statutory maximum is reviewed de novo on appeal, meaning no deference to the district court’s legal conclusion.

• Haymond and Marks: Haymond invalidated § 3583(k)’s mandatory minimum reimprisonment scheme. Under the Marks rule, Justice Breyer’s narrower concurrence controls: ordinary supervised release revocations under § 3583(e) remain constitutional because they are discretionary and tied to the original offense class, not a judge‑found new offense with a mandatory minimum.

Conclusion

United States v. Flores cements a clear, pragmatic rule for ACA sentencing in the Fifth Circuit: a federal court may impose supervised release after imposing the state‑law maximum term of imprisonment, even if the combined term of custody and supervision surpasses the state’s incarceration cap. That result flows from the ACA’s “like punishment” language, the distinct nature and purpose of supervised release, and federal sentencing policies that favor post‑release supervision as a tool of rehabilitation and public safety. By joining four sister circuits, the Fifth Circuit brings its ACA sentencing doctrine into alignment with national consensus and clarifies the scope of its earlier Marmolejo decision.

The court’s analysis also cabined constitutional objections under Haymond, emphasizing that ordinary supervised release under § 3583(e) remains discretionary and constitutionally sound. While the panel left unresolved whether a future revocation of supervised release could yield additional imprisonment beyond the state’s incarceration maximum, Flores nonetheless offers clear guidance for district courts: state law fixes the prison range, but federal law supplies the sentencing architecture, and supervised release may follow a maximum prison term in ACA cases.

Key takeaway: Under the ACA, “like punishment” permits supervised release to follow a state‑maximum term of imprisonment. Supervised release is not imprisonment, and its imposition advances federal reentry policy without breaching state incarceration caps.