Oklahoma Child-Abuse-by-Injury Has a “Sufficiently Analogous” Guideline: U.S.S.G. § 2A2.2 (Aggravated Assault) Applies Under U.S.S.G. § 2X5.1

Case: United States v. Smith (10th Cir. June 9, 2026)
Posture: Consolidated appeals by Joel Richard Smith and Amanda Irene Smith from convictions and sentences for Oklahoma child abuse and child neglect in Indian country.
Holding in one sentence: The Tenth Circuit affirmed both convictions and Mrs. Smith’s sentence, but vacated Mr. Smith’s sentence because the district court procedurally erred by concluding there was no sufficiently analogous Guideline for Oklahoma’s child-abuse-by-injury statute; U.S.S.G. § 2A2.2 is sufficiently analogous under U.S.S.G. § 2X5.1, and the error was not harmless.

I. Introduction

The Smiths’ case arose from severe mistreatment of a child (H.M.), who ran to a neighbor’s home in 2019 showing signs of malnutrition, poor hygiene, and physical abuse. A federal grand jury later charged:

• Joel Smith (Indian; Cherokee Nation) under the Major Crimes Act (MCA), 18 U.S.C. § 1153, for Oklahoma child abuse by injury (OKLA. STAT. tit. 21, § 843.5(A)) and child neglect (id. § 843.5(C)).
• Amanda Smith (non-Indian) under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, as applied through the General Crimes Act (GCA), 18 U.S.C. § 1152, for the same Oklahoma offenses.

Five appellate issues framed the decision, but the opinion’s principal doctrinal contribution is sentencing-related: when a state-assimilated or state-defined federal offense lacks an expressly promulgated Guideline, the court must still apply the most analogous Guideline where the elements sit in the same “ballpark.” Here, the Tenth Circuit held that Oklahoma child abuse by injury is sufficiently analogous to the federal “aggravated assault” guideline, U.S.S.G. § 2A2.2.

II. Summary of the Opinion

• Mr. Smith’s sentence vacated and remanded: The district court committed procedural error by declining to apply any analogous Guideline to Oklahoma child abuse by injury and instead sentencing under § 3553(a) as if no analogous Guideline existed. The Tenth Circuit held U.S.S.G. § 2A2.2 is sufficiently analogous under U.S.S.G. § 2X5.1. The government did not prove harmlessness.
• Convictions affirmed (both Smiths): The court upheld the convictions, including rejecting the attempt to resurrect a late challenge to aiding-and-abetting allegations via an “objection” to jury instructions (treated as an untimely Rule 12 motion to dismiss).
• Mrs. Smith’s jurisdiction challenge rejected: Castro-Huerta did not eliminate federal jurisdiction; federal and state jurisdiction is concurrent, and the GCA/ACA framework remains valid.
• Mrs. Smith’s late Rule 29/33 motion rejected: Her post-verdict motion filed more than a year late was not excused by “excusable neglect” under Rule 45; an unpublished decision (United States v. Shell) was not controlling intervening law.
• Mrs. Smith’s sentencing letters challenge rejected: Even if some letter writers were not “victims” under 18 U.S.C. § 3771(e)(2), 18 U.S.C. § 3661 allows wide-ranging sentencing information; and the district court stated it would not rely on new factual allegations.

III. Analysis

A. The New Sentencing Rule: Oklahoma § 843.5(A) Must Be Sentenced Using an Analogous Guideline—§ 2A2.2 Qualifies

1) Governing framework and standard of review

• Procedural reasonableness requires a correct Guidelines calculation: United States v. Candelaria; United States v. Jackson (2025); United States v. Ray.
• Guideline selection sequence: U.S.S.G. § 1B1.2(a) (identify applicable offense guideline); if none exists, U.S.S.G. § 2X5.1 (apply “most analogous offense guideline”); if none is sufficiently analogous, then 18 U.S.C. § 3553 controls.
• Analogousness is reviewed de novo: United States v. Clark (quoting United States v. Nichols).
• Harmless error burden: United States v. Gieswein; United States v. Eddington (government must show “more likely than not” the sentence would be unchanged).

2) How the court defined the “analogous guideline” test

• Elements-focused, not fact-focused: The court reiterated Clark/Nichols: compare elements; “need not consider the underlying factual circumstances.”
• Flexible “ballpark” approach: Clark (quoting United States v. Jackson (3d Cir. 2017)). A “perfect match” is not required; differences are expected.
• “Gist” concept: The court invoked Amgen Inc. v. Sanofi (“captures the gist”) to reinforce that a workable analogy is not identity.
• “Some plausible analogies” suffices: United States v. Rakes.

3) The holding on analogy: why § 2A2.2 fits Oklahoma child abuse by injury

The court compared Oklahoma’s child-abuse-by-injury elements—“willfully or maliciously injuring, torturing or maiming a child under eighteen”—to the Guidelines’ aggravated assault definition in § 2A2.2 (felonious assault with specified aggravators).

• Shared “type of criminal behavior”: The court relied on the § 2X5.1 commentary and the notion from United States v. Jackson (3d Cir. 2017) and United States v. Calbat that the most analogous guideline is the one covering the same “type of criminal behavior.”
• Affirmative-act similarity: Unlike child neglect (at issue in Clark), both child abuse by injury and aggravated assault generally involve affirmative misconduct (acts of violence or injury-producing conduct).
• Injury similarity (as a typical feature): Even if not always an element, Oklahoma “injuring/torturing/maiming” “contemplate[s] serious bodily injury,” supported by definitional materials and cases like United States v. Osborne and United States v. Betts (state statute may “contemplate” a feature without matching it as a strict element).
• Aggravator analogy: The victim’s protected status (child under 18) functions as an aggravating circumstance analogous to the varied aggravators captured by § 2A2.2 and its Appendix A statutory list; the opinion emphasized the breadth of statutes linked to § 2A2.2.

4) Government counterarguments rejected

• Mens rea mismatch: The government argued aggravated assault can be reckless while Oklahoma requires “willfully or maliciously.” The court treated both as “general intent” in the relevant sense (acts done voluntarily and intentionally), citing United States v. Zunie, United States v. Benally, United States v. Pettigrew, and Fairchild v. State, and invoked United States v. Harris to deem exact scienter alignment “inconsequential” in this context.
• Injury requirement mismatch: The government argued Oklahoma could be committed by “extreme mental cruelty” whereas aggravated assault “requires” serious bodily injury. The court responded that federal assault can be an attempted battery or apprehension-creating act (Clark), and § 2A2.2 is triggered by multiple aggravators, not solely actual bodily injury; at minimum, both crimes typically involve serious injury.
• Fact-based “inappropriate” argument: The government highlighted the multi-year abusive course of conduct, but the panel rejected the invitation as inconsistent with Clark’s “purely legal” approach.

B. Harmlessness and Remand: Why the Sentencing Error Required Vacatur

1) Harmlessness standard and anchoring effect

• Williams v. United States (1992): remand unless the error did not affect sentence selection.
• Guidelines “gravitational pull”: Peugh v. United States; United States v. Trujillo-Terrazas; United States v. Sabillon-Umana; Molina-Martinez v. United States (procedural guideline error often warrants remand even without direct proof outcome changed).
• No speculation: United States v. Labastida-Segura; United States v. Henry (prefer knowing on remand to guessing on appeal).

2) Concurrent-sentence doctrine rejected; sentencing-package doctrine applied

• Concurrent-sentence doctrine (declined): United States v. Williams (10th Cir. 2022) (quoting United States v. Segien; overruled on other grounds as recognized in United States v. Hathaway).
• Sentencing-package doctrine (applied): United States v. Hicks; United States v. Catrell; Ward v. Williams. The panel emphasized holistic sentencing for interdependent counts and cited persuasive authority (United States v. Touray; United States v. Fowler; United States v. Spencer; Pepper v. United States; United States v. Junius; Oslund v. United States; United States v. Soy; United States v. Pratt).
• Remand authority: 28 U.S.C. § 2106; United States v. Jackson (10th Cir. 2023); United States v. Clements.

Practically, the court saw the district judge’s “total term” framing and overlapping conduct as signaling an integrated sentencing plan. With the starting point wrong, the government could not show—by a preponderance—that the same 180-month sentence would have been imposed if § 2A2.2 (70–87 months) had anchored the analysis.

C. Other Issues: What the Court Reaffirmed (and Why It Matters)

1) Late “objection” to aiding-and-abetting instruction treated as untimely Rule 12 motion

• Substance over label: Home Loan Inv. Co. v. St. Paul Mercury Ins. Co.; Dodson Int'l Parts, Inc. v. Williams Int'l Co. LLC; United States v. Amado; Conrad v. Phone Directories Co., Inc.
• Rule 12 timeliness and “good cause” gatekeeping: United States v. Bowline (no review—even plain error—absent good cause); United States v. Schneider.
• Reply-brief waiver: United States v. Roark; United States v. Cortez; Stump v. Gates.
• Harmlessness alternative (not essential to the holding): the panel noted the verdict form structure made any aiding-and-abetting instructional issue “surely unattributable” (United States v. Rainford; United States v. Kahn; United States v. Holder).

2) Post–Castro-Huerta federal jurisdiction over non-Indians remains intact

Mrs. Smith argued Castro-Huerta’s recognition of state authority destroyed federal authority by negating “sole and exclusive jurisdiction” (GCA) and “not within the jurisdiction of any State” (ACA). The Tenth Circuit rejected this as a misreading of text and precedent:

• Castro-Huerta itself: reaffirmed the GCA “simply borrows” enclave law and extends it to Indian country, and quoted Ex parte Wilson’s reading of “sole and exclusive” as describing the laws extended, not exclusivity of Indian-country jurisdiction.
• Ex parte Wilson and Donnelly v. United States: “sole and exclusive” does not require exclusive federal jurisdiction over Indian country.
• Textual anti-contradiction rationale: Shapiro v. McManus; United States ex rel. Eisenstein v. City of New York.
• ACA grammar and structure: disjunctive reading (Foutz v. United States); last antecedent/nearest referent canons (Barnhart v. Thomas; United States v. Crooks).
• Consistency with long ACA/GCA practice: Williams v. United States (1946); Denezpi v. United States; United States v. Langford; United States v. Pino; United States v. Sharpnack; United States v. Jones; United States v. Cowboy.

3) Rule 45 “excusable neglect” cannot be built on nonbinding, unpublished decisions

• Equitable test: Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship; United States v. Torres.
• Unpublished decisions are nonbinding: Lexington Ins. Co. v. Precision Drilling Co., L.P.
• Ignorance of available legal arguments is not excusable neglect: Pioneer; Quigley v. Rosenthal.
• Comparative authority: United States v. Mink (and its discussion of United States v. Abu Khatallah).

4) Sentencing information: § 3771 victim rights do not restrict § 3661 breadth

• Victims’ right to be heard: 18 U.S.C. § 3771(a)(4), (e)(2)(A).
• No limitation on sentencing information: 18 U.S.C. § 3661; Pepper v. United States; United States v. Tucker; United States v. Watts; United States v. Martinez; Concepcion v. United States.
• Other circuits in accord: United States v. Smith (2d Cir. 2020); United States v. O'Lear; United States v. Straw.
• Rule 32 fairness concern addressed by non-reliance: the court noted timing concerns but stated it would disregard new/inconsistent factual allegations and rely on the PSR as the sentencing factual baseline (cf. United States v. Alvarado (quoting United States v. Perri)).
• Distinguishing claimed authorities: United States v. Chanthadara and United States v. Curran did not compel relief because the district court here disclaimed reliance on late-breaking factual allegations (and Curran was framed as supervisory-power relief, not a due process or Rule 32 holding).

IV. Precedents Cited (Grouped by Function)

1) Analogous-Guideline selection and methodology

• United States v. Clark
• United States v. Nichols
• United States v. Jackson (3d Cir. 2017)
• United States v. Calbat
• United States v. Rakes
• Amgen Inc. v. Sanofi
• United States v. Osborne
• United States v. Betts

2) Procedural reasonableness and harmless error

• United States v. Candelaria
• United States v. Jackson (10th Cir. 2025)
• United States v. Ray
• United States v. Gieswein
• United States v. Eddington
• Williams v. United States
• Peugh v. United States
• United States v. Trujillo-Terrazas
• United States v. Sabillon-Umana
• Molina-Martinez v. United States
• United States v. Labastida-Segura
• United States v. Henry

3) Multi-count sentencing (sentencing-package vs concurrent-sentence doctrine)

• United States v. Williams (10th Cir. 2022)
• United States v. Segien
• United States v. Hathaway
• United States v. Hicks
• United States v. Catrell
• Ward v. Williams
• United States v. Clements
• Pepper v. United States
• United States v. Touray
• United States v. Fowler
• United States v. Spencer
• United States v. Junius
• Oslund v. United States
• United States v. Soy
• United States v. Pratt

4) Indian country jurisdiction and enclave-law borrowing

• Oklahoma v. Castro-Huerta
• Ex parte Wilson
• Donnelly v. United States
• Williams v. United States (1946)
• Denezpi v. United States
• Lewis v. United States
• United States v. Christie
• United States v. Polk
• United States v. Langford
• United States v. Pino
• United States v. Sharpnack
• Shapiro v. McManus
• United States ex rel. Eisenstein v. City of New York
• Barnhart v. Thomas
• United States v. Crooks

5) Timing/waiver doctrines and sentencing information

• United States v. Bowline
• United States v. Schneider
• Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship
• United States v. Torres
• Quigley v. Rosenthal
• Lexington Ins. Co. v. Precision Drilling Co., L.P.
• United States v. Martinez
• Concepcion v. United States
• United States v. Tucker
• United States v. Watts
• United States v. Chanthadara
• United States v. Curran
• United States v. Yelloweagle

V. Complex Concepts Simplified

1) “No guideline expressly has been promulgated” and U.S.S.G. § 2X5.1

When the Sentencing Guidelines do not name a specific offense guideline for the conviction statute, the judge does not jump straight to a freeform § 3553(a) analysis. Under § 2X5.1, the judge must first select the “most analogous” guideline—meaning the guideline that best matches the offense’s elements and “type of criminal behavior,” even if the match is imperfect.

2) “Sufficiently analogous” does not mean “identical”

The Tenth Circuit reiterated that analogies tolerate differences; the question is whether the two offenses are in the same “ballpark” and whether “some plausible analogies” exist. This is particularly important for assimilated/state-defined offenses, where element-by-element identity is rarely possible.

3) Sentencing-package doctrine vs concurrent-sentence doctrine

• Concurrent-sentence doctrine: an appellate court may decline to review an error on one count if the defendant is already serving an equal/longer concurrent sentence on another count.
• Sentencing-package doctrine: multi-count sentencing is treated as an integrated plan; if one count’s guideline anchor is wrong and the plan is “unbundled,” the district court may resentence to reconfigure the overall package.

4) GCA/ACA/MCA in Indian country

• MCA (18 U.S.C. § 1153): gives federal jurisdiction to prosecute enumerated major crimes committed by an Indian in Indian country; when federal law does not define/punish the offense, state law supplies the definition/punishment.
• GCA (18 U.S.C. § 1152): extends general federal enclave criminal law to Indian country, with exceptions.
• ACA (18 U.S.C. § 13): fills gaps in federal enclave criminal law by borrowing state criminal law; via the GCA, this gap-filling can operate in Indian country too.
• Castro-Huerta: recognizes state jurisdiction can be concurrent; it does not subtract federal jurisdiction.

5) Victim-rights statute vs broad sentencing information

18 U.S.C. § 3771 ensures victims can speak; it does not impose a ceiling on who else the judge may hear from. 18 U.S.C. § 3661 pushes the other way: it broadly permits the judge to receive and consider information from many sources (subject to constitutional constraints and basic fairness).

VI. Impact

• Immediate sentencing practice change in the Tenth Circuit: For Oklahoma child abuse by injury (OKLA. STAT. tit. 21, § 843.5(A)) prosecuted federally (including via MCA state-law definition), district courts should treat U.S.S.G. § 2A2.2 as sufficiently analogous and begin their Guidelines computation there, rather than defaulting to “no analogous guideline” and a purely § 3553-driven range.
• Constrains “no analogous guideline” findings: The opinion strengthens the presumption—rooted in § 2X5.1’s background note and United States v. Jackson (3d Cir. 2017)—that most assimilated/state-defined crimes will have an analogue, and it illustrates how broadly § 2A2.2 may operate as that analogue.
• Reinforces element-based methodology: By rejecting fact-intensive arguments at the analogue-selection stage, the opinion channels factual severity to later steps (offense-level adjustments, departures/variances, and § 3553(a)), not the threshold “which guideline applies?” question.
• Stabilizes post–Castro-Huerta federal charging: The jurisdiction discussion offers a clear rejection of “Castro-Huerta strips federal jurisdiction” arguments, relying on Castro-Huerta’s own quotations of Ex parte Wilson and the long-established enclave-law borrowing model.

VII. Conclusion

United States v. Smith’s central contribution is a concrete, reviewable rule for federal sentencing of Oklahoma child-abuse-by-injury convictions in Indian country: even without an expressly promulgated guideline, courts must apply an analogue under U.S.S.G. § 2X5.1, and the Tenth Circuit held that U.S.S.G. § 2A2.2 (aggravated assault) is “sufficiently analogous” to OKLA. STAT. tit. 21, § 843.5(A). Because the Guidelines anchor sentencing, the misselection was procedurally unreasonable and not shown harmless; the court therefore vacated Mr. Smith’s sentence and remanded for resentencing consistent with the corrected guideline starting point—while leaving intact the convictions, Mrs. Smith’s jurisdictional prosecution under GCA/ACA after Castro-Huerta, and the broad discretion to consider non-victim information at sentencing under § 3661.