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

I. Introduction

United States v. Smith (10th Cir. June 9, 2026) arises from the prosecution of Joel Richard Smith (an Indian and member of the Cherokee Nation) and Amanda Irene Smith (a non-Indian) for severe abuse and neglect of Joel Smith’s niece, H.M. (an Indian), occurring in Indian country in Oklahoma. A federal jury convicted both defendants of (1) child abuse by injury, OKLA. STAT. tit. 21, § 843.5(A), and (2) child neglect, OKLA. STAT. tit. 21, § 843.5(C), with aiding-and-abetting alleged in the indictment.

The consolidated appeals presented multiple challenges to convictions and sentences. The central reversible issue concerned sentencing procedure: whether the district court erred by concluding there was no sufficiently analogous guideline for Oklahoma child abuse by injury, and therefore sentencing under 18 U.S.C. § 3553 without an anchored Guidelines range under U.S.S.G. § 2X5.1.

II. Summary of the Opinion

  • Mr. Smith’s sentence vacated and remanded: The court held U.S.S.G. § 2A2.2 (aggravated assault) is “sufficiently analogous” to Oklahoma’s child-abuse-by-injury statute for purposes of U.S.S.G. § 2X5.1. The district court’s contrary conclusion rendered Mr. Smith’s sentence procedurally unreasonable and was not harmless.
  • Convictions affirmed: The court affirmed both defendants’ convictions, rejecting challenges tied to the aiding-and-abetting instruction dispute and jurisdictional arguments.
  • Mrs. Smith’s sentence affirmed: The court rejected challenges to late-submitted sentencing letters, concluding no reversible unfairness where the district court stated it would not rely on new or inconsistent factual allegations and did not rely on the letters.

III. Analysis

A. Precedents Cited

1. Analogous-guideline selection under U.S.S.G. § 2X5.1 (elements-based and flexible)

The opinion’s core holding is built on the Tenth Circuit’s established framework that deciding whether a guideline is “sufficiently analogous” is a legal, elements-comparison inquiry:

  • United States v. Clark: Treated analogousness as “purely legal,” requiring comparison of elements rather than the case’s underlying facts, and emphasized a “flexible and open-ended” approach with “ballpark” similarity rather than element identity. The Smith court adopted Clark’s methodology and distinguished Clark’s result (no assault analog for Oklahoma child neglect) from this case (aggravated-assault analog for Oklahoma child abuse by injury).
  • United States v. Nichols: Provided the elements-comparison approach quoted through Clark. Smith uses Nichols/Clark to reject arguments based on the “years-long course” of conduct because factual detail is not part of the analogousness determination.
  • United States v. Jackson (3d Cir. 2017): Supplied the “ballpark” framing and the notion that assimilation typically has a guideline analog; the Tenth Circuit relied on this logic to reinforce that most assimilated crimes should map onto an existing guideline.
  • United States v. Calbat (5th Cir. 2001): Cited via the Third Circuit for the principle that the most analogous guideline is the one covering the “type of criminal behavior.” Smith uses this to justify choosing § 2A2.2 as matching the behavior of “willfully or maliciously injuring, torturing or maiming” a child.
  • Amgen Inc. v. Sanofi: Invoked for the idea that a useful analogy “captures the gist.” Smith uses this to defend a non-identical but meaningful alignment between child abuse by injury and aggravated assault.
  • United States v. Rakes: Cited for applying a “plausible analogies” threshold, underscoring that exact overlap is not required.

2. Procedural reasonableness and Guidelines anchoring

  • United States v. Candelaria, United States v. Jackson (10th Cir. 2025), and United States v. Ray: Reinforced the rule that sentencing must start with correctly calculating the applicable Guidelines range; Smith uses these to frame the district court’s failure to apply an analogous guideline as a procedural error.
  • United States v. Joe: Used for the concept that an incorrect Guidelines “starting point” is a serious procedural defect.

3. Harmless error in Guidelines miscalculations

  • Williams v. United States (503 U.S. 193): Provided the Supreme Court standard that remand is required unless the appellate court concludes the Guidelines error did not affect the sentence.
  • United States v. Gieswein and United States v. Eddington: Allocated the burden to the government to show harmlessness (by a preponderance) and to show the court would have imposed the same sentence.
  • Molina-Martinez v. United States, Peugh v. United States, and United States v. Trujillo-Terrazas: Supported the “anchoring” and “gravitational pull” effect of the Guidelines, making it difficult for the government to prove harmlessness merely by asserting the judge would have varied upward anyway.
  • United States v. Sabillon-Umana and United States v. Labastida-Segura: Rejected speculative harmlessness arguments and insisted the appellate court not “guess on appeal.”

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

  • United States v. Williams (10th Cir. 2022) and United States v. Segien: Described the discretionary concurrent-sentence doctrine (declining review of one sentence when an equal/longer concurrent sentence stands).
  • United States v. Hicks, United States v. Catrell, and Ward v. Williams: Supported applying the sentencing-package doctrine even when only one sentence is vacated and even when counts run concurrently, because multi-count sentencing is often holistic and interdependent.
  • United States v. Clements and 28 U.S.C. § 2106: Supported vacating the “entire sentencing package” where a Guidelines error affects the sentencing architecture.
  • Pepper v. United States: Provided Supreme Court support for vacating and remanding to let the district court “reconfigure the sentencing plan.”

5. Rule 12 timeliness and recharacterization of motions (aiding-and-abetting “objection”)

  • Home Loan Inv. Co. v. St. Paul Mercury Ins. Co. and Dodson Int'l Parts, Inc. v. Williams Int'l Co. LLC: Justified looking to the substance of a motion rather than its label, supporting the district court’s treatment of an “objection” as a late motion to dismiss.
  • United States v. Bowline and United States v. Schneider: Established that Rule 12 defects in the indictment must be raised pretrial, and absent “good cause” an untimely Rule 12 motion is not reviewable—even for plain error.
  • United States v. Cortez and Stump v. Gates: Supported the waiver rule for arguments raised for the first time in a reply brief (used to reject reliance on United States v. Sweet raised late).

6. Federal jurisdiction in Indian country after Oklahoma v. Castro-Huerta

  • Oklahoma v. Castro-Huerta: The key modern decision; Smith uses it to reject Mrs. Smith’s claim that concurrent state jurisdiction eliminates federal authority. The opinion emphasizes Castro-Huerta’s description that the GCA “borrows” federal enclave law and extends it to Indian country.
  • Ex parte Wilson and Donnelly v. United States: Historic Supreme Court cases interpreting the phrase “sole and exclusive jurisdiction” in the GCA’s predecessor as describing the body of laws extended, not as a jurisdictional prerequisite for exclusivity. Smith treats these as directly dispositive against Mrs. Smith’s statutory reading.
  • Lewis v. United States and United States v. Christie: Supplied the ACA’s “gap-filling” historical purpose—borrowing state law because early federal enclave criminal law was incomplete.
  • Williams v. United States (327 U.S. 711) and Denezpi v. United States: Confirmed ACA-in-Indian-country prosecutions via the GCA, undercutting claims that state jurisdiction defeats federal assimilation authority.
  • United States v. Pino and United States v. Sharpnack: Supported reading the ACA (through 18 U.S.C. § 7 references) to reach reservations because they are “reserved or acquired” for federal use, including under concurrent jurisdiction.
  • Shapiro v. McManus and United States ex rel. Eisenstein v. City of New York: Provided interpretive canons to avoid constructions that create contradictions and to give effect to all statutory provisions.
  • Barnhart v. Thomas and United States v. Crooks: Supported reading “not within the jurisdiction of any State” in the ACA as modifying “territorial sea,” not as a broad requirement that would exclude reservations from the ACA’s reach.

7. Late post-trial motions (Rules 29/33 and Rule 45 excusable neglect)

  • Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship and United States v. Torres: Provided the “equitable” excusable-neglect factors, focusing especially on the reason for the delay and whether it was within the movant’s control.
  • Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship and Quigley v. Rosenthal: Supported that ignorance of law generally is not excusable neglect.
  • United States v. Mink: Cited for the notion that a later decision that does not “change the law governing” the case cannot justify excusable neglect; Smith uses this to discount reliance on an unpublished decision.

8. Sentencing letters, “victims,” and broad sentencing information

  • Pepper v. United States, Wasman v. United States, United States v. Tucker, and United States v. Watts: Supported the longstanding principle (codified in 18 U.S.C. § 3661) that sentencing courts can consider wide-ranging information from varied sources.
  • United States v. Martinez and Concepcion v. United States: Supported broad sentencing discretion as to what information can be received and considered.
  • United States v. Smith (2d Cir. 2020), United States v. O'Lear, and United States v. Straw: Used to reject the claim that 18 U.S.C. § 3771’s victim-rights provisions operate to exclude non-victims from speaking or submitting information at sentencing.
  • United States v. Alvarado and United States v. Perri: Grounded the fairness principle that a defendant should be apprised of adverse information relied upon at sentencing, which Smith found satisfied because the district court stated it would not rely on new/inconsistent factual allegations in late letters.
  • United States v. Chanthadara and United States v. Curran: Addressed claims of fundamental unfairness from victim-impact information and undisclosed sentencing materials; Smith distinguished them on reliance and prejudice grounds.

B. Legal Reasoning

1. The new rule: § 2A2.2 is sufficiently analogous to OKLA. STAT. tit. 21, § 843.5(A)

The opinion’s most significant doctrinal contribution is its application of the “ballpark” standard to hold that Oklahoma child abuse by injury has an available analog: U.S.S.G. § 2A2.2 (aggravated assault). The court reasoned:

  • Elements-focused comparison: Following United States v. Clark, the court treated analogousness as “purely legal” and refused to use the underlying facts to decide guideline applicability.
  • Shared “type of criminal behavior”: Oklahoma child abuse by injury requires “willfully or maliciously injuring, torturing or maiming” a child. The aggravated assault guideline covers “felonious assault” with aggravating circumstances. Both involve intentional harmful conduct and typically serious injury.
  • Aggravating factor alignment: The court treated the victim’s status as a child (under 18) as an aggravating factor fitting within the broad “aggravated” concept used across the many federal statutes cross-referenced to § 2A2.2.
  • Mens rea objections rejected: The government’s argument that federal aggravated assault can be “reckless” while Oklahoma requires “willfully or maliciously” did not defeat analogy because both are “general intent” in the sense relevant to this comparison.
  • Injury-level objections rejected: Even if Oklahoma child abuse by injury could be committed via “extreme mental cruelty,” the court concluded aggravated assault does not invariably require actual serious bodily injury (attempted battery/apprehension suffices), and in any event Oklahoma’s terms “torture” and “maiming” “contemplate serious bodily injury.”

2. Procedural unreasonableness and harmlessness

Having identified the wrong starting point, the court treated the error as procedural and required remand absent harmlessness. It rejected harmlessness on two independent pathways:

  • No concurrent-sentence shortcut: The court declined to use the concurrent-sentence doctrine because the district court’s explanation indicated the two counts functioned as a unified “total term” rather than discretely calculated sentences.
  • No speculative “same sentence anyway” finding: The government could not carry its burden by asserting the court would have varied upward from a properly calculated range. The opinion leaned on the Guidelines’ anchoring effect and rejected conjecture about what the district judge would have done.

3. Clarifying what does not change after Castro-Huerta

Mrs. Smith attempted to convert Oklahoma v. Castro-Huerta (concurrent federal/state jurisdiction) into an argument for exclusive state jurisdiction and a loss of federal power under the GCA/ACA. The court rejected this as contrary to:

  • Textual structure: The GCA’s “sole and exclusive” language describes the category of laws extended to Indian country, not an exclusivity prerequisite; the ACA’s “not within the jurisdiction of any State” clause is best read as modifying “territorial sea.”
  • Longstanding Supreme Court interpretation: Ex parte Wilson and Donnelly v. United States foreclose the exclusivity reading; Castro-Huerta reaffirmed Wilson’s interpretation.

4. Sentencing submissions: § 3771 does not exclude non-victim input, and Rule 32 prejudice requires reliance

The court’s approach harmonizes the victim-rights statute (18 U.S.C. § 3771) with broad sentencing-information authority (18 U.S.C. § 3661):

  • § 3771 is a floor, not a ceiling: It ensures qualifying victims have a right to be heard; it does not prevent the judge from receiving other information.
  • Rule 32/Due Process focus on reliance and prejudice: Even assuming inadequate notice, the court found no reversible error because the district judge stated it would disregard new or inconsistent factual allegations and did not rely on the letters.

C. Impact

1. Sentencing uniformity for Oklahoma child-abuse-by-injury prosecutions in Indian country

The decision establishes that in the Tenth Circuit, Oklahoma’s child-abuse-by-injury statute (OKLA. STAT. tit. 21, § 843.5(A)) has an applicable sentencing framework through U.S.S.G. § 2X5.1: the court must use U.S.S.G. § 2A2.2 as the “most analogous offense guideline,” rather than defaulting to an unconstrained § 3553 approach on the theory that no guideline exists.

Practically, this increases predictability and appellate reviewability by ensuring a Guidelines anchor exists for this assimilated/MCA-defined offense, even though the court retains discretion to vary based on § 3553(a).

2. Reinforcing an elements-based analog inquiry

The opinion reiterates that “analogousness” is not fact-driven. This matters for future defendants and prosecutors: litigants must focus on statutory elements and guideline definitions/cross-references, not the particular narrative of harm in the record.

3. Limiting harmless-error arguments in Guidelines cases

By rejecting speculative assertions that a judge would have imposed the same sentence anyway, the decision encourages the government to build a clear record if it wants to defend a sentence on harmlessness (e.g., explicit alternative variance reasoning tied to a correct range).

4. Jurisdictional stability after Castro-Huerta

The decision reduces post-Castro-Huerta litigation risk for federal Indian country prosecutions by reaffirming that concurrent state jurisdiction does not displace federal authority under the GCA/ACA framework.

IV. Complex Concepts Simplified

  • Procedural reasonableness: A sentence is procedurally unreasonable if the court uses the wrong method—especially if it starts with an incorrect Guidelines calculation.
  • U.S.S.G. § 2X5.1 (“most analogous guideline”): If no guideline directly matches the offense of conviction, the court must pick the guideline that most closely matches the offense’s elements.
  • “Sufficiently analogous” (the “ballpark” test): The guideline need not have identical elements; it must capture the “type of criminal behavior” and be close enough to serve as the appropriate reference point.
  • Harmless error at sentencing: Even if the judge made a mistake, the government must show the mistake did not affect the sentence; if the record does not clearly support that, resentencing is required.
  • Concurrent-sentence doctrine vs. sentencing-package doctrine: The first can allow an appellate court to skip correcting an error if another equal/longer concurrent sentence stands; the second recognizes multi-count sentences are often a single “package,” so an error in one count can require resentencing on the whole package.
  • GCA/ACA/MCA: The MCA (18 U.S.C. § 1153) supplies federal jurisdiction over enumerated major crimes by Indians in Indian country and can borrow state definitions/punishments when federal law does not define the offense. The GCA (18 U.S.C. § 1152) extends federal enclave criminal law to Indian country (with exceptions). The ACA (18 U.S.C. § 13) “assimilates” state criminal law to fill gaps in federal enclave law and reaches Indian country via the GCA.
  • Crime Victims’ Rights Act (18 U.S.C. § 3771) vs. 18 U.S.C. § 3661: § 3771 guarantees qualifying victims certain participatory rights, while § 3661 broadly permits sentencing courts to receive and consider information from many sources; the presence of § 3771 rights does not generally exclude other inputs.

V. Conclusion

United States v. Smith is most significant for its sentencing holding: Oklahoma child abuse by injury (OKLA. STAT. tit. 21, § 843.5(A)) is “sufficiently analogous” to aggravated assault for Guidelines purposes, requiring use of U.S.S.G. § 2A2.2 under U.S.S.G. § 2X5.1. By vacating Mr. Smith’s sentence and rejecting harmlessness, the Tenth Circuit reinforced that correct Guidelines anchoring is not optional—even for assimilated or state-defined offenses prosecuted in federal court.

Beyond sentencing, the court stabilized three recurring issues in Indian country prosecutions: (1) Rule 12 timeliness bars late indictment-defect challenges absent “good cause”; (2) Oklahoma v. Castro-Huerta does not strip federal jurisdiction under the GCA/ACA; and (3) sentencing courts may receive broad information under 18 U.S.C. § 3661 even if a submission is not from a statutory “victim,” with reversibility turning on reliance and prejudice rather than mere receipt.