United States v. Bowen
Split Score
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Case Summary
Disposition
Affirmed
The Tenth Circuit affirmed Brian Keith Bowen, Jr.’s 48-month sentence for child abuse in Indian Country. The panel held that even if the district court erred in finding no Sentencing Guideline analogous to Oklahoma’s child-abuse statute, any error was not "plain" because the issue is unsettled and other circuits disagree with the unpublished Tenth Circuit decision on which Bowen relied.
Circuit Split Identified
Legal Issue
Whether state child-abuse statutes may be assimilated under the Assimilative Crimes Act / Major Crimes Act when the federal assault statute, 18 U.S.C. § 113, potentially covers the conduct.
Circuit Positions
Assimilation of state child-abuse statutes is impermissible when § 113 covers the conduct (federal law occupies the field).
State child-abuse statutes may be assimilated because child abuse is distinct from § 113 assault offenses.
Conflict Summary
The Tenth Circuit (in the unpublished Shell decision) views assimilation of state child-abuse statutes as impermissible when § 113 could have been used, reasoning that assimilation would rewrite Congress’s carefully crafted assault definitions. The Ninth and Fifth Circuits hold that state child-abuse statutes may be assimilated because child-abuse offenses are distinct from the assault offenses enumerated in § 113, so no federal statutory ‘gap’ is filled by § 113.