U.S.S.G. § 2A2.2 (Aggravated Assault) Is the “Most Analogous” Guideline for Oklahoma Child Abuse by Injury Under U.S.S.G. § 2X5.1

Case: United States v. Smith (10th Cir. June 9, 2026) (published)
Disposition: Convictions affirmed; Amanda Smith’s sentence affirmed; Joel Smith’s sentence vacated and remanded for resentencing on both counts.

I. Introduction

This consolidated appeal arises from the federal prosecution of Joel Richard Smith (a Cherokee Nation citizen) and his non-Indian wife, Amanda Irene Smith, for prolonged abuse and neglect of Mr. Smith’s Indian niece, H.M., while the family resided in Indian country in Oklahoma. A jury convicted both defendants of (1) child abuse by injury under OKLA. STAT. tit. 21, § 843.5(A) (2024) and (2) child neglect under § 843.5(C), with federal jurisdiction supplied by the Major Crimes Act (18 U.S.C. § 1153) for Mr. Smith and by the Assimilative Crimes Act (18 U.S.C. § 13) as applied through the General Crimes Act (18 U.S.C. § 1152) for Mrs. Smith.

The central appellate development is sentencing: the district court treated Mr. Smith’s child-abuse-by-injury conviction as having no sufficiently analogous Guideline, thereby starting from a “no-Guideline” posture (effectively “up to life”) and proceeding directly under 18 U.S.C. § 3553(a). The Tenth Circuit held that was legal error. Applying the circuit’s “ballpark” approach to U.S.S.G. § 2X5.1, the court announced a concrete analogue: U.S.S.G. § 2A2.2 (aggravated assault) is sufficiently analogous to Oklahoma child abuse by injury under § 843.5(A).

II. Summary of the Opinion

  • Mr. Smith (sentencing): The district court committed procedural error by concluding no sufficiently analogous Guideline existed for Oklahoma’s child-abuse-by-injury statute; U.S.S.G. § 2A2.2 is sufficiently analogous under U.S.S.G. § 2X5.1. The government failed to prove harmlessness, so the court vacated Mr. Smith’s sentence and remanded for resentencing.
  • Aiding-and-abetting “objection”: The district court properly treated the mid-trial “objection” to the aiding-and-abetting instruction as an untimely Rule 12 motion to dismiss and declined to reach the merits absent “good cause.”
  • Mrs. Smith (jurisdiction post-Castro-Huerta): Federal jurisdiction remains; Mrs. Smith’s reading of “sole and exclusive jurisdiction” in the GCA and “not within the jurisdiction of any State” in the ACA was rejected as contrary to statutory text and controlling precedent, including the Supreme Court’s explicit language in Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022).
  • Mrs. Smith (late Rule 29/33 motion): Untimely by more than a year; no “excusable neglect” under Rule 45; the unpublished United States v. Shell did not constitute a controlling change in law.
  • Mrs. Smith (sentencing letters): No reversible error in receiving letters from non-victims because 18 U.S.C. § 3661 broadly allows sentencing information; and no due process/Rule 32 violation where the district court said it would not rely on new or inconsistent factual assertions and nothing showed reliance.

III. Analysis

A. The New Sentencing Rule: § 2A2.2 Is Sufficiently Analogous to Oklahoma Child Abuse by Injury

The opinion’s most practically important holding is its application of U.S.S.G. § 2X5.1 to an assimilated/borrowed state offense: when a felony offense of conviction has no expressly promulgated Guideline, the district court must apply “the most analogous offense guideline.” The district court concluded there was none for OKLA. STAT. tit. 21, § 843.5(A). The Tenth Circuit held that conclusion was wrong as a matter of law and that U.S.S.G. § 2A2.2 (aggravated assault) “captures the gist” of the Oklahoma offense.

Critically, the court reiterated that the analogousness inquiry is: (1) element-focused, (2) purely legal, and (3) flexible—a “perfect match of elements is not necessary (or even expected).” The district court therefore errs when it demands near-identity between state elements and federal elements or when it treats the lack of a perfect federal twin as a license to abandon the Guideline framework.

B. Precedents Cited (and How They Drive the Result)

1) Procedural reasonableness and the centrality of a correct Guideline starting point

  • United States v. Candelaria, 151 F.4th 1261 (10th Cir. 2025) and United States v. Jackson, 138 F.4th 1244 (10th Cir. 2025): Restated the baseline: procedural reasonableness includes a properly calculated Guideline range.
  • United States v. Ray, 704 F.3d 1307 (10th Cir. 2013): Reaffirmed that sentencing must “begin” with correct Guidelines calculation.
  • United States v. Joe, 696 F.3d 1066 (10th Cir. 2012): The “starting point” matters—misstarting can infect the ultimate sentence even when the court varies.
  • Peugh v. United States, 569 U.S. 530 (2013) and United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005): The Guidelines exert “gravitational pull,” supporting skepticism that a miscalculation is harmless.
  • Molina-Martinez v. United States, 578 U.S. 189 (2016): Reinforced that Guideline errors often warrant remand even without specific proof of a different outcome.
  • United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) and United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005): Rejected appellate “guesswork” about what a sentencing judge would have done under the correct range.

2) The § 2X5.1 “sufficiently analogous” test (the heart of the decision)

  • United States v. Clark, 981 F.3d 1154 (10th Cir. 2020) (quoting United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999)): The controlling framework: compare elements; do not rely on underlying facts; analogies are “flexible and open-ended”; the guideline need only be in the same “proverbial ballpark”; differences are expected, but “significant differences” defeat analogy.
    The Smith court deployed Clark in two ways: (i) it adopted Clark’s flexible standard, and (ii) it distinguished Clark’s outcome (child neglect vs. assault guidelines) by emphasizing that Oklahoma child abuse by injury, unlike child neglect, typically involves an affirmative act and injury—core similarities to aggravated assault.
  • United States v. Jackson, 862 F.3d 365 (3d Cir. 2017) and United States v. Calbat, 266 F.3d 358 (5th Cir. 2001): Used to underscore the Sentencing Commission’s expectation that most assimilated offenses will have an analogue and that the right analogue tracks the “type of criminal behavior.”
  • United States v. Rakes, 510 F.3d 1280 (10th Cir. 2007): Provided the “some plausible analogies” formulation that supports choosing § 2A2.2 even where element alignment is imperfect.
  • Amgen Inc. v. Sanofi, 598 U.S. 594 (2023): Borrowed for the “gist” concept—an analogy need not be exact, but must capture the essential features.

3) Mens rea and “general intent” alignment

  • United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006) and United States v. Pettigrew, 468 F.3d 626 (10th Cir. 2006) (citing United States v. Benally, 146 F.3d 1232 (10th Cir. 1998)): Supported the court’s view that both Oklahoma child abuse by injury (willful/malicious) and federal assault offenses are “general intent” in the relevant sense: intentional/voluntary conduct (including recklessness for some assault variants) rather than accident.
  • Fairchild v. State, 998 P.2d 611 (Okla. Crim. App. 1999), as corrected on denial of reh’g (May 11, 2000): Provided Oklahoma’s understanding of “willfully or maliciously” as “not accidentally or involuntarily.”
  • United States v. Harris, 10 F.4th 1005 (10th Cir. 2021): Used to rebut the government’s mens rea objection by noting that imperfect mens rea alignment is not dispositive in this broader federal assimilation context.

4) Harmless error, concurrent-sentence doctrine, and sentencing-package doctrine

  • Williams v. United States, 503 U.S. 193 (1992): Articulated the harmlessness standard for Guideline misapplication.
  • United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018) and United States v. Eddington, 65 F.4th 1231 (10th Cir. 2023): Placed the harmlessness burden on the government (preponderance; “would have imposed the same sentence”).
  • United States v. Williams, 48 F.4th 1125 (10th Cir. 2022) (quoting United States v. Segien, 114 F.3d 1014 (10th Cir. 1997), overruled on other grounds as recognized in United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003)): Framed the discretionary concurrent-sentence doctrine—then rejected it as a poor fit on this record.
  • United States v. Hicks, 146 F.3d 1198 (10th Cir. 1998); United States v. Catrell, 774 F.3d 666 (10th Cir. 2014); Ward v. Williams, 240 F.3d 1238 (10th Cir. 2001); United States v. Jackson, 82 F.4th 943 (10th Cir. 2023): Supported using the sentencing-package doctrine to vacate the “package” where counts were treated holistically and the Guideline starting point was wrong.
  • Pepper v. United States, 562 U.S. 476 (2011) and 28 U.S.C. § 2106: Confirmed the appellate court’s power to vacate and remand for reconfiguration of the sentencing plan.
  • United States v. Henry, 852 F.3d 1204 (10th Cir. 2017) and United States v. Walker, 74 F.4th 1163 (10th Cir. 2023): Reinforced that appellate courts should not “guess” variance decisions; resentencing permits a holistic reconsideration under § 3553(a).

5) Rule 12 recharacterization and waiver of untimely indictment challenges

  • Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256 (10th Cir. 2016); Dodson Int’l Parts, Inc. v. Williams Int’l Co. LLC, 12 F.4th 1212 (10th Cir. 2021); United States v. Amado, 841 F.3d 867 (10th Cir. 2016); Conrad v. Phone Directories Co., Inc., 585 F.3d 1376 (10th Cir. 2009): Supported the district court’s authority to treat a filing by its substance (a motion to dismiss) rather than its label (a jury-instruction objection).
  • United States v. Bowline, 917 F.3d 1227 (10th Cir. 2019) and United States v. Schneider, 594 F.3d 1219 (10th Cir. 2010): Anchored the strictness of Rule 12(c)(3): without “good cause,” an untimely motion is not reviewable—even for plain error.
  • United States v. Sweet, 107 F.4th 944 (10th Cir. 2024) and waiver cases (United States v. Cortez, 965 F.3d 827 (10th Cir. 2020); Stump v. Gates, 211 F.3d 527 (10th Cir. 2000)): The court declined to entertain a reply-brief attempt to invoke Sweet.

6) Castro-Huerta, the GCA/ACA, and concurrent jurisdiction in Indian country

  • Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022): Directly refuted Mrs. Smith’s reading; the Supreme Court stated that state and federal governments have concurrent jurisdiction over non-Indian-on-Indian crimes in Indian country and explained that the GCA “simply borrows” federal enclave law rather than requiring enclave-like exclusivity.
  • Ex parte Wilson, 140 U.S. 575 (1891) and Donnelly v. United States, 228 U.S. 243 (1913): Longstanding Supreme Court interpretations that “sole and exclusive” in the GCA describes the laws extended to Indian country, not an exclusivity requirement over Indian country itself.
  • Williams v. United States, 327 U.S. 711 (1946) and Denezpi v. United States, 596 U.S. 591 (2022): Confirmed that federal jurisdiction exists for non-Indians committing offenses against Indians in Indian country, including via the assimilative pathway.
  • Lewis v. United States, 523 U.S. 155 (1998); United States v. Christie, 717 F.3d 1156 (10th Cir. 2013); United States v. Polk, 61 F.4th 1277 (10th Cir. 2023); United States v. Langford, 641 F.3d 1195 (10th Cir. 2011): Explained the ACA’s gap-filling purpose and its extension to Indian country through the GCA.
  • United States v. Pino, 606 F.2d 908 (10th Cir. 1979) and United States v. Sharpnack, 355 U.S. 286 (1958): Supported the proposition that Indian reservations fall within the ACA’s reach through the “reserved or acquired” language cross-referencing 18 U.S.C. § 7.
  • United States v. Cowboy, 694 F.2d 1228 (10th Cir. 1982): Reinforced that Indian country is distinct from federal enclaves for jurisdictional purposes, consistent with Castro-Huerta.

7) Late post-verdict motions and “excusable neglect”

  • Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) and United States v. Torres, 372 F.3d 1159 (10th Cir. 2004): Provided the equitable “excusable neglect” factors and reinforced that ignorance of law typically is not excusable neglect.
  • Lexington Ins. Co. v. Precision Drilling Co., L.P., 830 F.3d 1219 (10th Cir. 2016): Unpublished decisions are not binding; Shell could not supply a controlling legal change.
  • United States v. Shell, No. 23-5086, 2024 WL 3455033 (10th Cir. July 18, 2024) (unpublished): Treated by Mrs. Smith as “intervening case law,” but the panel held it did not justify a year-late Rule 29/33 filing where the underlying argument was available earlier.

8) Sentencing information: “victims” under § 3771 vs broad information under § 3661

  • Pepper v. United States, 562 U.S. 476 (2011); Wasman v. United States, 468 U.S. 559 (1984); United States v. Tucker, 404 U.S. 443 (1972); United States v. Watts, 519 U.S. 148 (1997) (per curiam); United States v. Martinez, 610 F.3d 1216 (10th Cir. 2010); Concepcion v. United States, 597 U.S. 481 (2022): Confirmed sentencing courts’ broad discretion to receive information from diverse sources, codified by 18 U.S.C. § 3661.
  • United States v. Smith, 756 F.3d 1179 (10th Cir. 2014): Emphasized the “long tradition” of wide sentencing information subject to constitutional constraints.
  • Sister-circuit support: United States v. Smith, 967 F.3d 198 (2d Cir. 2020); United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024), cert. denied, 144 S. Ct. 2542 (2024); United States v. Straw, 616 F.3d 737 (8th Cir. 2010): Explained that § 3771 grants rights to victims but does not require excluding non-victims from being heard.
  • United States v. Alvarado, 909 F.2d 1443 (10th Cir. 1990): Recognized due process concerns where a sentence rests on undisclosed adverse information.
  • United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000) and United States v. Curran, 926 F.2d 59 (1st Cir. 1991): Used to reject the “fundamental unfairness” claim, particularly where (as here) the district court disclaimed reliance on any new or inconsistent facts.

C. Legal Reasoning (Step-by-Step)

1) Identifying the correct legal question under § 2X5.1

The panel treated the “most analogous Guideline” question as a de novo legal issue: compare the elements of the state offense of conviction with the elements of federal offenses covered by an existing Guideline. Importantly, it refused to consider “the underlying factual circumstances” of Mr. Smith’s case in deciding analogousness (though those facts remain relevant later under § 3553(a)).

2) Why § 2A2.2 fits Oklahoma’s child-abuse-by-injury statute

Oklahoma child abuse by injury requires (in simplified terms) a willful/malicious act that injures, tortures, or maims a child under eighteen. The aggravated assault Guideline defines aggravated assault as a felonious assault plus an aggravator (dangerous weapon with intent to injure, serious bodily injury, strangling/suffocating, or intent to commit another felony).

The panel found “ballpark” congruence:

  • Act requirement: Both offenses generally involve an affirmative act (as contrasted with child neglect, which can be omission-based).
  • Injury contemplation: Even if neither offense strictly requires physical injury in all permutations, both “typically” involve serious harm; § 843.5(A)’s concepts (injuring/torturing/maiming) “contemplate serious bodily injury.”
  • Aggravation: Oklahoma’s child-victim element was treated as an aggravating feature analogous to the varied aggravators associated with the many federal statutes sentenced under § 2A2.2. The court emphasized the breadth of statutes listed in § 2A2.2’s commentary and Appendix A as signaling that the Commission intended a liberal use of § 2A2.2 as an analogue.
  • Mens rea alignment: Differences between “recklessness” in some federal assault variants and Oklahoma’s “willfully or maliciously” did not defeat the analogy because both are “general intent” in the relevant sense (voluntary, not accidental), and § 2X5.1 does not require perfect mens rea identity.

3) Rejecting harmless error

The panel’s harmlessness analysis is as consequential as its analogy holding. It rejected two paths to affirmance:

  • Concurrent-sentence doctrine: The court declined to treat the error as harmless merely because the neglect sentence ran concurrently; the record showed the district court viewed the two counts as a combined “total term” and did not sentence them as independent silos.
  • “Same sentence anyway” speculation: The government argued the judge would have upward-varied from the corrected range. The panel held that this conjecture did not satisfy the government’s burden, invoking Guideline “anchoring” and rejecting appellate guesses.

By applying the sentencing-package doctrine, the panel authorized resentencing on both counts because the package was “unbundled” by the Guideline error.

D. Impact

  • Concrete guidance for Oklahoma child-abuse-by-injury sentencings in federal court: District courts in the Tenth Circuit must treat U.S.S.G. § 2A2.2 as a sufficiently analogous Guideline for convictions under OKLA. STAT. tit. 21, § 843.5(A), rather than defaulting to a no-analogue § 3553-only framework.
  • Limits on district-court discretion at the first step: The decision reinforces that judicial discretion under § 3553(a) begins after (not in lieu of) determining the correct Guideline starting point when § 2X5.1 applies.
  • Harmless error burden remains demanding: Prosecutors cannot rely on “the judge would have varied anyway” arguments without record support; sentencing transcripts should address alternative ranges if the court seeks to make an appellate-harmlessness record.
  • Post-Castro-Huerta jurisdiction stability: The opinion signals that Castro-Huerta expands state authority without contracting federal authority; federal ACA/GCA prosecutions of non-Indians for crimes against Indians remain firmly viable in the circuit.
  • Victim-rights statutes do not create an exclusionary rule: Even if a speaker is not a “crime victim” under 18 U.S.C. § 3771, 18 U.S.C. § 3661 generally permits the sentencing court to receive and consider relevant information from that person, subject to due process constraints and reliability.

IV. Complex Concepts Simplified

  • “Most analogous offense guideline” (U.S.S.G. § 2X5.1): If the Guidelines do not contain a rule written for your exact crime, the court must choose the closest existing Guideline by comparing the legal elements of your crime to federal crimes that already have Guideline coverage. “Closest” does not mean identical; it means close enough to be in the same “ballpark.”
  • Procedural reasonableness: A sentence is procedurally unreasonable if the judge uses the wrong method—especially a wrong Guidelines calculation—even if the ultimate number might look plausible.
  • Assimilative Crimes Act (ACA) and General Crimes Act (GCA): The ACA lets federal courts borrow state criminal law to fill gaps on federal lands; the GCA extends that borrowed-law mechanism to Indian country (with exceptions).
  • Major Crimes Act (MCA): A jurisdictional statute allowing federal prosecution of listed serious crimes committed by an Indian in Indian country; when federal law does not define the offense, state law supplies the definition and punishment.
  • Concurrent-sentence doctrine vs. sentencing-package doctrine: The former is an appellate shortcut sometimes used to avoid reviewing one concurrent sentence; the latter recognizes that multi-count sentences are often interdependent, so an error on one count can justify resentencing the entire “package.”
  • Rule 12 “good cause” and waiver: Certain challenges (like indictment defects) must be raised pretrial. If raised late without “good cause,” appellate courts generally cannot review them at all.
  • Rule 45 “excusable neglect”: A limited safety valve for missed deadlines; it is an equitable inquiry, but ignorance of an available argument generally is not enough.

V. Conclusion

United States v. Smith delivers a clear, operational rule for a recurring federal-Indian-country prosecution pattern: for Oklahoma child abuse by injury under OKLA. STAT. tit. 21, § 843.5(A), the sentencing court must treat U.S.S.G. § 2A2.2 as a sufficiently analogous Guideline under U.S.S.G. § 2X5.1. The decision strengthens the requirement that courts correctly anchor sentencing in the Guidelines, tightens harmless-error analysis when that anchor is missing, and confirms that Castro-Huerta’s recognition of concurrent state jurisdiction does not undercut federal ACA/GCA jurisdiction. On the margins, it also reaffirms strict Rule 12 timing discipline and clarifies that § 3771 victim-rights provisions do not restrict the broad information intake permitted by § 3661 at sentencing.