U.S.S.G. § 2A2.2 Is the “Most Analogous” Guideline for Oklahoma Child-Abuse-by-Injury (Okla. Stat. tit. 21, § 843.5(A)) Sentenced in Federal Indian-Country Prosecutions

1. Introduction

In United States v. Smith (10th Cir. June 9, 2026), the Tenth Circuit addressed a recurring federal sentencing problem in Indian-country prosecutions: how to calculate an advisory Guidelines range when the offense of conviction is defined by state law (here, Oklahoma’s child-abuse-by-injury statute) and no Guideline expressly covers the offense.

The defendants—Joel Richard Smith (an Indian and Cherokee Nation member) and Amanda Irene Smith (a non-Indian)—were convicted after a jury trial of child abuse and child neglect under Oklahoma law for prolonged mistreatment of their Indian child-victim niece, H.M., in Indian country. Federal jurisdiction rested on different statutes for each defendant: the Major Crimes Act (“MCA”), 18 U.S.C. § 1153, for Mr. Smith, and the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13, applied to Indian country through the General Crimes Act (“GCA”), 18 U.S.C. § 1152, for Mrs. Smith.

On appeal, the consolidated case presented five major issues: (i) Mr. Smith’s Guidelines calculation; (ii) the handling of an objection to aiding-and-abetting instructions; (iii) whether Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), undermined federal subject-matter jurisdiction over Mrs. Smith; (iv) timeliness of Mrs. Smith’s post-trial Rule 29/33 motions; and (v) whether the district court improperly considered late-submitted sentencing letters.

The court found only one reversible error: Mr. Smith’s sentence was procedurally unreasonable because the district court failed to apply the “most analogous offense guideline” under U.S.S.G. § 2X5.1. The court vacated Mr. Smith’s entire sentencing package and remanded for resentencing; it otherwise affirmed.

2. Summary of the Opinion

  • Sentencing (Mr. Smith): The district court erred by concluding no sufficiently analogous Guideline exists for Okla. Stat. tit. 21, § 843.5(A) (child abuse by injury). The Tenth Circuit held U.S.S.G. § 2A2.2 (aggravated assault) is sufficiently analogous, and the error was not harmless. Mr. Smith’s sentence was vacated and remanded.
  • Convictions (both defendants): The court affirmed, rejecting procedural challenges to the aiding-and-abetting instruction issue (treated as an untimely Rule 12 motion to dismiss without good cause).
  • Jurisdiction (Mrs. Smith): The court held Castro-Huerta did not strip federal courts of jurisdiction over non-Indian defendants prosecuted under the GCA/ACA framework; federal and state jurisdiction are concurrent.
  • Post-trial motions (Mrs. Smith): The court affirmed denial of her second Rule 29/33 motion as untimely and not excused by Rule 45 “excusable neglect,” emphasizing that an unpublished decision (United States v. Shell) is not binding and did not create excusable neglect.
  • Sentencing letters (Mrs. Smith): The court held the district court could consider information from non-victims under 18 U.S.C. § 3661, and there was no Rule 32/due process violation because the district court stated it would not rely on any new factual allegations contained in the late letters.

3. Analysis

3.1 Precedents Cited

A. The “most analogous guideline” framework under U.S.S.G. § 2X5.1

The court situated its analysis in established Tenth Circuit sentencing law:

  • United States v. Candelaria, 151 F.4th 1261 (10th Cir. 2025) and United States v. Jackson, 138 F.4th 1244 (10th Cir. 2025) were cited for the baseline requirement that every sentence must be procedurally reasonable and that procedural reasonableness includes a properly calculated Guidelines range.
  • United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) anchored the principle that district courts must begin by correctly calculating the Guidelines range.
  • United States v. Zamora, 97 F.4th 1202 (10th Cir. 2024) supplied the general review standard (legal issues de novo; factual findings clear error), while United States v. Clark, 981 F.3d 1154 (10th Cir. 2020) established that whether a sufficiently analogous guideline exists is reviewed de novo.

Most importantly, United States v. Clark and United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999), provided the governing method: compare the elements of the offense of conviction to federal offenses covered by existing Guidelines, treating the question as “purely legal” and not dependent on case-specific facts. The court emphasized Clark’s insistence on a “flexible and open-ended” inquiry, adopting the “same proverbial ‘ballpark’” framing drawn from United States v. Jackson, 862 F.3d 365 (3d Cir. 2017). It reinforced that a “perfect match” is not required and that “sufficiently analogous” offenses necessarily differ in elements.

To justify using plausible, gist-capturing analogies, the court invoked Amgen Inc. v. Sanofi, 598 U.S. 594 (2023) (“captures the gist”) and its own “some plausible analogies” formulation from United States v. Rakes, 510 F.3d 1280 (10th Cir. 2007).

B. Harmless error and the gravitational pull of the Guidelines

For harmlessness, the court relied on:

  • Williams v. United States, 503 U.S. 193 (1992) (misapplication of Guidelines warrants remand unless harmless on the record as a whole).
  • United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018) and United States v. Eddington, 65 F.4th 1231 (10th Cir. 2023) (government bears burden; must show by a preponderance that the district court would have imposed the same sentence absent error).
  • Peugh v. United States, 569 U.S. 530 (2013) and United States v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) (Guidelines “anchor” sentencing and exert “gravitational pull”).
  • United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) and Molina-Martinez v. United States, 578 U.S. 189 (2016) (Guidelines errors typically matter; do not demand additional proof that the outcome changed).
  • United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005) (rejects harmlessness built on speculation about what the district court “would have done”).

C. Concurrent-sentence doctrine vs. sentencing-package doctrine

The court rejected the government’s bid to avoid review via the concurrent-sentence doctrine:

  • 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) (describing the doctrine and its discretionary nature).

Instead, it applied the sentencing-package doctrine to vacate the “package” and permit holistic resentencing:

  • United States v. Hicks, 146 F.3d 1198 (10th Cir. 1998) (core sentencing-package principle).
  • United States v. Catrell, 774 F.3d 666 (10th Cir. 2014) and Ward v. Williams, 240 F.3d 1238 (10th Cir. 2001) (doctrine applies when a sentence—without vacating a conviction—must be revisited; resentencing can reach other counts).
  • Pepper v. United States, 562 U.S. 476 (2011) (appellate courts may vacate an entire sentence so the district court can “reconfigure the sentencing plan”).
  • Persuasive support from other circuits: United States v. Touray, 151 F.4th 1317 (11th Cir. 2025); United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014); United States v. Spencer, 998 F.3d 843 (8th Cir. 2021); United States v. Soy, 413 F.3d 594 (7th Cir. 2005); United States v. Pratt, 915 F.3d 266 (4th Cir. 2019); United States v. Junius, 86 F.4th 1027 (3d Cir. 2023); Oslund v. United States, 944 F.3d 743 (8th Cir. 2019).

D. Rule 12 waiver and recharacterizing a motion by substance

On the aiding-and-abetting instruction dispute, the court relied on cases emphasizing substance over labels:

  • 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).
  • United States v. Bowline, 917 F.3d 1227 (10th Cir. 2019) (Rule 12’s “good cause” gate is exclusive; if no good cause, appellate review is barred even for plain error).
  • United States v. Schneider, 594 F.3d 1219 (10th Cir. 2010) (untimely indictment challenges waived).
  • Reply-brief waiver rule: United States v. Roark, 140 F.4th 1280 (10th Cir. 2025); United States v. Cortez, 965 F.3d 827 (10th Cir. 2020); Stump v. Gates, 211 F.3d 527 (10th Cir. 2000).

E. Indian-country jurisdiction after Castro-Huerta; the meaning of “sole and exclusive jurisdiction”

Mrs. Smith’s jurisdictional challenge teed up the relationship between the GCA, the ACA, and Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022). The court treated this as largely settled by text and history:

  • Ex parte Wilson, 140 U.S. 575 (1891) and Donnelly v. United States, 228 U.S. 243 (1913) were central: the phrase “sole and exclusive” in the GCA describes the body of laws extended, not a requirement of exclusive federal jurisdiction over Indian country.
  • Lewis v. United States, 523 U.S. 155 (1998) and United States v. Christie, 717 F.3d 1156 (10th Cir. 2013) supplied the purpose/history of the ACA as gap-filling through assimilation of state criminal law.
  • United States v. Polk, 61 F.4th 1277 (10th Cir. 2023) and United States v. Langford, 641 F.3d 1195 (10th Cir. 2011) framed the ACA/GCA interaction (federal-enclave law extended to Indian country).
  • Williams v. United States, 327 U.S. 711 (1946) (ACA and federal jurisdiction over non-Indian-on-Indian crimes in Indian country).
  • Additional supporting authority: United States v. Harris, 10 F.4th 1005 (10th Cir. 2021); United States v. Pino, 606 F.2d 908 (10th Cir. 1979); United States v. Sharpnack, 355 U.S. 286 (1958); Tooisgah v. United States, 186 F.2d 93 (10th Cir. 1950); United States v. Cowboy, 694 F.2d 1228 (10th Cir. 1982).

F. Sentencing information: victims’ rights, non-victim input, and disclosure fairness

For the late-submitted sentencing letters, the court interpreted and harmonized:

  • 18 U.S.C. § 3771 (crime victims’ right “to be reasonably heard” at sentencing), and
  • 18 U.S.C. § 3661 (“[n]o limitation” on information a sentencing court may consider).

It relied on the breadth-of-information tradition as stated in Pepper v. United States, 562 U.S. 476 (2011), Wasman v. United States, 468 U.S. 559 (1984), and United States v. Tucker, 404 U.S. 443 (1972), as well as its own discretion statement in United States v. Martinez, 610 F.3d 1216 (10th Cir. 2010), and the Supreme Court’s re-affirmation of broad sentencing discretion in Concepcion v. United States, 597 U.S. 481 (2022).

The court joined sister-circuit reasoning rejecting the view that § 3771 excludes non-victim information: 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).

On disclosure/fairness, it discussed Rule 32 principles and cited United States v. Alvarado, 909 F.2d 1443 (10th Cir. 1990) (fairness may require apprising defendants of adverse information), and distinguished United States v. Curran, 926 F.2d 59 (1st Cir. 1991) because the district court in Smith stated it would not rely on new factual allegations from the late letters. It also noted the high bar for “fundamental unfairness” by referencing victim-impact evidence cases such as United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000), along with United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007) and Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008).

3.2 Legal Reasoning

A. The new sentencing rule: § 2A2.2 is sufficiently analogous to Oklahoma child abuse by injury

The core doctrinal move is the court’s element-level analogy between:

  • Oklahoma child abuse by injury: “willfully or maliciously injuring, torturing or maiming a child under eighteen (18) years of age,” Okla. Stat. tit. 21, § 843.5(A), (O)(1)(b), and
  • Guideline aggravated assault: “a felonious assault” with enumerated aggravators, U.S.S.G. § 2A2.2 cmt. n.1.

Applying Clark and Nichols, the court treated the inquiry as “purely legal,” focused on elements, not the “years-long course” of conduct. It found the “gist” similarity: both crimes typically involve (i) an affirmative act and (ii) serious injury. It then identified a functional aggravator in Oklahoma’s statute: the protected status of the victim as a child under 18—analogous (for purposes of § 2X5.1’s flexible inquiry) to the varied aggravating factors that can qualify federal assaults as “aggravated.”

The court reinforced this “liberal analogizing” by pointing to the breadth of federal statutes cross-referenced to § 2A2.2 in Appendix A, reasoning that the Commission intended § 2A2.2 to cover a wide range of “aggravated” violence contexts.

B. Rejecting the government’s mens rea and injury objections

The government’s mens rea argument failed because the court framed both offenses as “general intent” in the relevant sense: voluntary, intentional conduct, not accident. It drew on United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006), United States v. Pettigrew, 468 F.3d 626 (10th Cir. 2006), and Oklahoma authority Fairchild v. State, 998 P.2d 611 (Okla. Crim. App. 1999), as corrected on denial of reh’g (May 11, 2000). It also used United States v. Harris, 10 F.4th 1005 (10th Cir. 2021), to stress that exact scienter alignment is unnecessary in assimilation/analogy contexts.

The injury argument failed for two reasons: (i) neither offense necessarily requires bodily injury as a strict element in all applications (e.g., assault can be attempt/apprehension-based), and (ii) even if Oklahoma’s statute can be committed by “extreme mental cruelty,” the statute’s concepts (“maiming,” “torture,” and the exclusion of ordinary discipline) show it “contemplate[s] serious bodily injury.” The court relied on Oklahoma materials cited in the opinion, including Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1994), and pointed to the permissibility of analogies where state elements “contemplate, or can involve” the federal element (citing United States v. Betts, 99 F.4th 1048 (7th Cir. 2024) and United States v. Osborne, 164 F.3d 434 (8th Cir. 1999)).

C. Non-harmlessness and resentencing scope: rejecting the concurrent-sentence shortcut

The district court’s error was not harmless because the Guidelines are a sentencing “anchor,” and the record did not show the same 180-month sentence would have been imposed under a correctly calculated range (the opinion references 70–87 months if § 2A2.2 applied). The court refused to “guess on appeal,” echoing the logic of United States v. Henry, 852 F.3d 1204 (10th Cir. 2017), and found the government’s harmlessness theory speculative under Labastida-Segura.

Crucially, the court treated Mr. Smith’s two concurrent sentences as interdependent, choosing the sentencing-package doctrine. This is a practical, remedial holding: a Guidelines error on one count can justify vacating the entire “package” to permit the district court to “reconfigure” the holistic sentencing plan on remand.

D. The conviction challenges: procedural gatekeeping over late legal theories

On the aiding-and-abetting instruction dispute, the court’s reasoning was procedural and institutional:

  • Because defendants sought dismissal (“be dismissed from this indictment in whole”), the district court properly construed the filing as a Rule 12 motion to dismiss rather than a pure jury-instruction objection.
  • Rule 12 required the defect-in-indictment theory to be raised pretrial, and under United States v. Bowline the lack of “good cause” barred appellate review.

The jurisdiction challenge was resolved on statutory text and long-settled interpretation: Castro-Huerta recognized concurrent state and federal jurisdiction and reaffirmed Ex parte Wilson’s reading that “sole and exclusive jurisdiction” in § 1152 describes the laws borrowed (federal enclave law), not exclusive federal adjudicatory authority over Indian country.

E. Sentencing letters: § 3771 does not limit § 3661

The court’s synthesis is important: the crime-victim statute imposes a floor (victims must be heard), while § 3661 preserves a ceiling-less informational universe (non-victims may also be considered), bounded by constitutional constraints and procedural fairness. On fairness, the court found no reversible error because the district court stated it would disregard new or inconsistent factual allegations and did not rely on the contested late letters.

3.3 Impact

A. Sentencing in Indian-country child-abuse cases: a concrete Guideline starting point

The decision’s most direct impact is on federal sentencing for Oklahoma child abuse by injury charged in Indian country via the MCA (and potentially via the ACA/GCA when applicable). District courts in the Tenth Circuit now have a published directive: when no Guideline is expressly promulgated for Okla. Stat. tit. 21, § 843.5(A), U.S.S.G. § 2A2.2 is “sufficiently analogous” within the meaning of U.S.S.G. § 2X5.1.

Practically, this:

  • reduces the likelihood of district courts defaulting to an uncabined “up to life” approach under § 3553(a) as though no analogous Guideline exists,
  • standardizes the “starting point” across cases, and
  • positions appellate review around familiar § 2A2.2 application issues (base offense level, specific offense characteristics) rather than threshold “no-analog” disputes.

B. Remedial consequences: more frequent “package” resentencing in multicount Guidelines errors

The court’s refusal to apply the concurrent-sentence doctrine—paired with its reliance on the sentencing-package doctrine—signals that Guidelines errors in multicount cases will often trigger full resentencing, even where sentences run concurrently and the defendant did not separately challenge every count’s sentence.

C. Indian-country jurisdiction stability after Castro-Huerta

The jurisdiction analysis reinforces that Castro-Huerta expands state authority without contracting federal authority. For practitioners, the opinion is a roadmap to rebut “exclusive jurisdiction” arguments based on misreadings of “sole and exclusive jurisdiction” in § 1152 and “not within the jurisdiction of any State” in § 13(a).

D. Sentencing submissions: non-victim letters remain admissible information (with safeguards)

By aligning with other circuits, the court reduces the likelihood that § 3771 will be used to exclude non-victim information at sentencing. The limiting principle remains reliance: late, disputed, or new factual allegations risk Rule 32/due process problems if the court actually relies on them without adequate disclosure and opportunity to respond.

4. Complex Concepts Simplified

  • U.S.S.G. § 2X5.1 (“most analogous guideline”): If the Guidelines do not contain a specific rule for the offense of conviction, the court must pick the closest Guideline for a similar federal offense, based on comparing the legal elements—not the messy real-world facts.
  • “Sufficiently analogous”: The Guideline does not need to match perfectly. It must be close enough to be in the same “ballpark.”
  • MCA / GCA / ACA (Indian-country charging structure): The MCA (18 U.S.C. § 1153) provides federal jurisdiction over listed major crimes when committed by Indians in Indian country and often uses state law to define/punish where federal law lacks a definition. The GCA (18 U.S.C. § 1152) extends federal enclave criminal law to Indian country. The ACA (18 U.S.C. § 13) “borrows” state crimes to fill gaps in federal enclave law; through the GCA, it can apply in Indian country.
  • Concurrent-sentence doctrine vs. sentencing-package doctrine: The concurrent-sentence doctrine sometimes lets an appellate court ignore an error if another equal/longer concurrent sentence stands. The sentencing-package doctrine recognizes multicount sentencing is holistic; if one piece is wrong, the whole package may need rebuilding on remand.
  • Harmless Guidelines error: The government must show the judge would have imposed the same sentence even if the Guidelines were calculated correctly. Speculation is not enough.
  • CVRA “victim” rights (18 U.S.C. § 3771) vs. broad sentencing information (18 U.S.C. § 3661): Victims must be allowed to be heard, but non-victims are not automatically excluded; judges may consider a very wide range of information at sentencing.

5. Conclusion

United States v. Smith is a significant, published Tenth Circuit sentencing precedent for Indian-country prosecutions involving Oklahoma child abuse by injury. It holds that U.S.S.G. § 2A2.2 (aggravated assault) is “sufficiently analogous” to Okla. Stat. tit. 21, § 843.5(A) for purposes of U.S.S.G. § 2X5.1, making it procedural error to bypass the Guidelines and proceed as if no analogous guideline exists. The court further demonstrates a strong remedial preference for resentencing the entire multicount “package” when a Guidelines error affects the sentencing framework.

Beyond sentencing, the opinion reinforces post-Castro-Huerta jurisdictional stability (concurrent federal/state authority), emphasizes Rule 12’s strict pretrial timing rules for indictment-defect theories, and clarifies that § 3771 victim-rights provisions do not displace § 3661’s longstanding breadth of information a sentencing court may receive and consider—so long as fairness constraints are respected in practice.