___________

                            No. 97-1261
                            ___________

United States of America,       *
                                *
          Plaintiff - Appellee *
                                *   Appeal from the United States
     v.                         *   District Court for the
                                *   District of South Dakota.
Dwaine Julius Engelhorn,        *
                                *
          Defendant - Appellant *


                            ___________


                  Submitted: June 10, 1997

                      Filed: July 30, 1997
                           ___________

Before MURPHY and HEANEY, Circuit Judges, and BOGUE,* District
     Judge.
                         ___________

BOGUE, Senior District Judge.

     On October 26, 1996, Dwaine Julius Engelhorn pled guilty to
attempted indecent exposure on an Indian reservation.    Engelhorn
was charged under the Assimilative Crimes Act because his crime
occurred within Indian Country and his victim was an Indian. 18



     *The HONORABLE ANDREW W. BOGUE, United States District
     Judge for the District of South Dakota, sitting by
     designation.
U.S.C. § § 13 and 1152.         Because Engelhorn had three prior sexual
contact convictions, the crime he attempted to commit would have
been punishable as a class 6 felony under South Dakota law pursuant
to S.D.C.L. § 22-24-1.         Section 22-24-1 carries with it a maximum
sentence of two years in prison, a $2,000 fine, or both. S.D.C.L.
§   22-6-1(8).       Under    S.D.C.L.    §    22-4-1(2),   however,      “if   the
attempted    crime    is     punishable   by    imprisonment    in    the   state
penitentiary for any time less than five years, the person guilty
of such attempt is punishable by imprisonment in a county jail for
not more than one year.”         Thus, the maximum term of incarceration
the district court1 could impose on Engelhorn under state law was
one year.


      At the sentencing hearing, the defendant objected to any
imposition of a period of supervised release in the event the court
imposed the maximum custodial sentence of one year.                 The district
court,    however,    imposed    a   custodial     sentence    of    12   months,
overruled the defendant’s objection, and included a one year period
of supervised release in the sentence pursuant to 18 U.S.C. §
3583(a).


      On appeal, Engelhorn argues that imposition of the period of
supervised release violates the “like punishment” provision of the
Assimilative Crimes Act (ACA) 18 U.S.C. § 13, and is therefore
impermissible.       He argues that if he had been sentenced to the
maximum term possible by a South Dakota court, he would have been
ineligible for parole or probation after serving that sentence and
would thereafter be a free man.                 Imposition of the one year
supervised release, he maintains, far exceeds the maximum sentence
he could receive in state court, is not a “like punishment” when


      1
      The Honorable Lawrence L. Piersol, United States District
Judge, District of South Dakota.

                                      -2-
compared    to   state    law,   and   therefore   violates   the   ACA.   We
disagree.


                                        I.


     Our    review   of    the   district    court’s   application    of   the
Sentencing Guidelines is de novo. United States v. Schaffer, 

(8th Cir. 1997).


     Congress enacted the Assimilative Crimes Act for the purpose
of filling the voids in the criminal law applicable to federal
enclaves created by the failure of Congress to pass specific
criminal statutes. United States v. Butler, 

, 733-34
(8th Cir. 1976).         The Act provides that in the absence of a
governing federal statute, a person who commits an act or omission
on a federal enclave which act or omission is punishable under
state law “shall be guilty of a like offense and subject to a like
punishment.” 18 U.S.C. § 13(a).              The ACA does not contemplate
selective assimilation of state criminal laws.          The federal courts,
however, have recognized an exception to this general rule where
there is a need to promote federal policy. See, United States v.
Teran, 

(5th Cir. 1996); United States v. Reyes, 

(9th Cir. 1995); and United States v. Kelly, 

(4th
Cir. 1993).      Thus, although a federal prisoner is convicted and
sentenced in accordance with the ACA, he is still subject to
federal correctional policies. See, United States v. Harris, 

(4th Cir. 1994).


     Initially, it is important to note that if the defendant had
been convicted of a federal misdemeanor and sentenced to a maximum
penalty of one year incarceration, the district court properly
could have imposed an additional one year period of supervised


                                       -3-
release. 18 U.S.C. § 3583.         That is, the total time involved in a
term of imprisonment and supervised release may exceed the maximum
term of incarceration authorized by the substantive federal statute
under which a defendant is convicted. United States v. Watkins, 

(8th Cir. 1994); See also, United States v. Purvis, 

, 1279 (9th Cir. 1991)(18 U.S.C. § 3583 authorizes the
revocation     of    supervised       release     even     where      the   resulting
incarceration, when combined with the period of time already served
for a misdemeanor offense, will exceed the maximum incarceration
permissible under the substantive statute).                Section 3583 reads in
relevant part: “The court, in imposing a sentence of a term of
imprisonment for a felony or misdemeanor, may include as a part of
the sentence a requirement that the defendant be placed on a term
of supervised release, after imprisonment . . . .”                      18 U.S.C. §
3583(a).   Authorizing supervised release “as part of the sentence,”
as opposed to “as part of the incarceration,” implies that a term
of   supervised     release   is   to       be   imposed   in   addition        to   any
incarceration       authorized   by    a    particular     substantive      criminal
statute. 

.            Such a result furthers Congress’
intent, in abolishing the federal parole system, to make the period
of allowable supervision that a judge could impose, independent of
the amount of time the defendant has spent in jail. See, United
States v. Montenegro-Rojo, 

(9th Cir. 1990).                    It is the
federal policy to give judges the power to make an independent
determination of whether a particular defendant needs supervision
after his incarceration. 

                      This power is to be
exercised in furtherance of the overall purpose of supervised
release - to ease the defendant’s transition into the community or
to   provide    rehabilitation         to    a   defendant      who     still    needs
supervision and training programs after release. United States v.
Love, 

, 417 [n.4] (8th Cir. 1996)(citing S.Rep. No. 225,



                                        -4-
98th Cong., 2d Sess. 124, reprinted in 1984 U.S.C.C.A.N. 3182,
3307).


     We must here decide whether the same policy applies where the
defendant is charged under the Assimilative Crimes Act yet the
substantive state law under which he was convicted provides for no
period     of   supervised       release.       This   issue     is   one    of   first
impression in our circuit and we are guided by the fourth circuit’s
opinion in United States v. Pierce, 

(4th Cir. 1996)


                                          II.


     In Pierce the defendant was arrested and charged under the ACA
with driving while impaired on a United States Military Base in
North Carolina.            He pled guilty to violating the applicable North
Carolina statute prohibiting impaired driving, and was sentenced to
one year probation.            After the defendant violated his probation,
the federal magistrate judge revoked his probation and sentenced
him to 30 days incarceration followed by one year of supervised
release.    Had the defendant been sentenced in state court, however,
the maximum punishment he could have received following revocation
of his probation was a 60-day term of incarceration.


     The defendant argued that because North Carolina law had no
provision       for    imposition    of     supervised   release,       he   was   not
subjected to “like punishment” as required by the ACA.                            North
Carolina law, however, provided for parole eligibility at any time
upon being incarcerated unless the sentence required a mandatory
minimum     term      of    imprisonment.       In   affirming    the   defendant’s
sentence, the Fourth Circuit Court of Appeals reasoned that because
parole under state law, and supervised release under federal law,
serve similar functions of guided re-entry into society following
a period of incarceration, supervised release is “like” parole for



                                          -5-
purposes of the ACA. 

.                     Thus, the Pierce
court concluded, the defendant’s sentence of incarceration plus a
term of supervised release did not violate the ACA’s requirement
that he be subject to “like punishment.” 

the ACA, federal courts have consistently held, as
did Pierce,    that    the      “like   punishment”        provision   of    the    ACA
requires    only    that    a   similar      sentence      be   imposed,    and     not
necessarily an identical one.               Federal courts are not completely
bound by state sentencing requirements. See, e.g., 

(federal and state sentences need not be identical under the
ACA); 

(“like punishment” does not encompass
every incident of a state’s sentencing policy); United States v.
Marmolejo,    

,    984    (5th   Cir.    1990)(“like”     implies
similarity, not identity);           United States v. Garcia, 

,
254 (10th Cir. 1989)(“Efforts to duplicate every last nuance that
would be imposed in state court has never been required.”).                         For
purposes of the ACA, therefore, parole and probation under state
law are “like” supervised release under federal law if they serve
similar    functions    and     achieve      similar    goals.      The     court   in
Marmolejo held, for example, since parole and supervised release
both occur following a term of imprisonment, involve government
supervision, and serve to facilitate a prisoner’s transition into
society, they are “like” for purposes of the ACA. 

.        Similarly, in Reyes the court found that because
supervised release and probation occur after imprisonment, and both
involve governmental supervision after release, they are similar
enough to constitute “like punishment.” 

.


     Although South Dakota law has no provision for supervised
release following one’s incarceration, it does provide for parole
or probationary release prior to the expiration of a defendant’s


                                        -6-
maximum potential term of incarceration for certain offenses. See,
S.D.C.L.      §    §    24-15-1.1      (parole);    and     23A-27-12    (probation).
Probation is an option available to state judges in fashioning
appropriate sentences for defendants convicted of a misdemeanor
offense under South Dakota law. S.D.C.L. §§ 23A-27-12 and 23A-27-
18.1.      Similar to a supervised release under the federal system,
probation under South Dakota law is discretionary and conditional,
involves a period of government supervision, and a probationer can
be re-incarcerated upon revocation of his probation. S.D.C.L. §
23A-27-19.1; State v. Oban, 

(S.D. 1985); State v.
Elder, 

(S.D. 1959).                 Moreover, probation is imposed
“with the purpose of achieving the goal of rehabilitation, the
accomplishment of which will serve to protect the public during the
period of probation, as well as thereafter.” State v. Cummings, 

, 61 (S.D. 1978); S.D.C.L. § 24-15-11.


         If Engelhorn had been convicted and sentenced for the same
misdemeanor offense in a South Dakota state court, he could have
faced a sentence comprised of a period of incarceration, followed
by   a    period       of    probation.   S.D.C.L.      §   23A-27-18.1.        Because
probation,        under       South    Dakota    law,     can   follow   a     term   of
incarceration,              involves   government       supervision,     and     serves
society’s goal of rehabilitation, the sentence imposed by the
district court--a period of incarceration plus a term of supervised
release--was like a punishment the defendant could have faced in a
state court.           In this case, therefore, supervised release is a
“like punishment” for             ACA purposes. See, 

.


                                           III.


         Engelhorn maintains that imposition of the one year supervised
release in addition to the term of incarceration far exceeds the


                                           -7-
maximum sentence he could receive in state court, and in that
manner violates the “like punishment” requirement of the ACA.               In
Pierce, the defendant made a similar argument, maintaining that the
supervised release imposed upon him was impermissible because the
total sentence imposed exceeded the maximum term of imprisonment
authorized by North Carolina law for the underlying offense.                In
rejecting this argument, the court reiterated that in the context
of defendants convicted of violating federal criminal statutes,
supervised release is not considered part of the incarceration
portion   of   a   sentence,   and   is    therefore   not   limited   by   the
statutory maximum term of incarceration. 

          Moreover, the
court found, a federal court will not adopt provisions of state law
that conflict with federal sentencing policy. 

concluded that “[s]ince under federal policy supervised release is
considered distinct from incarceration and available in addition to
any term of imprisonment, adopting Pierce’s argument would create
an ACA sentencing rule that conflicts with federal sentencing
policy regarding the imposition of supervised release.” 

refused to create a sentencing exception for ACA defendants.
We agree and now hold, although the term of incarceration imposed
upon a defendant convicted under the ACA may not exceed that
provided by state substantive law, the total sentence imposed--
consisting of a term of incarceration followed by a period of
supervised release--may exceed the maximum term of incarceration
provided for by state law. See, 

.


                                     IV.


     Engelhorn argues the Pierce case is legally and factually
distinguishable from this case, however, in that the defendant in
Pierce was sentenced to less than the maximum possible term of
incarceration under state law.        Thus, parole would have been


                                     -8-
available to that defendant under state law, whereas in this case,
Engelhorn would not have been eligible for any parole or probation
under South Dakota law because he was sentenced to a maximum one
year term of incarceration.         Whether supervised release is a “like
punishment,” he argues, depends upon whether a similar punishment
is   actually     available   under    state    law,   and   not   precluded   by
imposition of the maximum possible term of incarceration.                      As
noted, however, the district court may impose supervised release
upon an ACA defendant in addition to a term of incarceration, the
combination of which could result in a sentence in excess of the
maximum period of incarceration allowed by state law.                 Engelhorn
would have us create an exception to this rule for ACA defendants
sentenced    to     the   maximum     term     of   incarceration    under     the
assimilated state law.        This we cannot do.


      In abolishing the federal parole system, Congress intended to
make the length of one’s post-incarceration supervision dependent
solely upon his need for supervision, rather than upon the length
of his original prison term. 

.
Under the old system, the length of time a defendant could be
supervised on parole following imprisonment, and the length of time
for which he could be re-incarcerated following parole revocation,
were dependant on the length of his original term of imprisonment.

No. 225, 98th Cong., 2d Sess. 122-24, reprinted
in 1984 U.S.Code Cong. & Admin.News 3182, 3305-07).                   A parolee
remained under the control of the Attorney General until the
expiration of the maximum term of imprisonment to which he was
sentenced.      Thus, the smaller the percentage of his term of
imprisonment a prisoner actually spent in prison, the longer his
period of parole supervision would be. 

                  Situations
arose where those worse-behaved prisoners who served at or near the
maximum term of prison and who were most in need of post-


                                       -9-
incarceration     supervision,   would     get   very   little   supervision
because they were ineligible for early release on parole. 

new supervised release system, the length of post-
incarceration supervision is dependent solely on the defendant’s
need for supervision after his release, regardless of the length of
time of his prison term.     “[T]he question whether a defendant will
be supervised following his term of imprisonment is dependant on
whether the judge concludes that he needs supervision . . . .”             

this determination the sentencing court must consider, in
part, the nature and circumstances of the offense, the history and
characteristics of the defendant, and the need for deterrence,
rehabilitation, and public safety. See, 18 U.S.C. §§ 5383(c) and
3553.


      The   Sentencing   Guidelines,     including      the   provisions   for
supervised release, were made applicable to the ACA in 1990 by
congressional amendment to 18 U.S.C. § 3551(a).2 See, 

.    It is Congress’ intent, therefore, to give judges the
discretion to impose a maximum term of incarceration plus a period
of   supervised   release,   upon   those    defendants,       including   ACA
defendants, whom the judges deem appropriate candidates for post-
incarceration supervision.       Moreover, this discretion is to be
exercised upon considerations independent of the length of prison
time, including the maximum term, imposed upon or served by the


        2
        Section 3551(a) reads in relevant part:
          Except as otherwise provided, a defendant who has been
          found guilty of an offense described in any Federal
          statute, including sections 13 and 1153 of this title . . .
          shall be sentenced in accordance with the provisions of
          this chapter so as to achieve the purposes set forth in
          subparagraphs (A) through (D) of section 3553(a)(2) to the
          extent that they are applicable in light of the
          circumstances of the case.


                                    -10-
defendant.     Engelhorn’s position would make the availability of
supervised release contingent upon imposition of less than the
maximum possible term of incarceration.       If a federal court could
not impose supervised release after determining an appropriate
sentence of imprisonment, that court might be unable to impose what
it determined to be an appropriate length of imprisonment and a
period of supervised release upon individuals it determined to be
in need of post-incarceration supervision, even though the crime
was committed within an area of federal jurisdiction.3      Engelhorn’s
position is contrary to the federal correctional policies and must
therefore be rejected. See, United States v. Burke, 

(11th Cir.    1997)(per   curiam)(affirming   imposition   of   one   year
supervised release upon ACA defendant sentenced to maximum one year
imprisonment for state misdemeanor violation).       Affirmed.


     A true copy.


             Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     3
      The Facts of this case clearly demonstrate why sentencing
courts need the option of imposing supervised release upon ACA
defendants following a term of incarceration. Engelhorn had three
convictions for sexual abuse of children prior to his conviction in
this case. Each subsequent offense, including the offense in this
case, occurred within 13 months of his release from prison.
Supervised release is clearly necessary to provide Engelhorn the
rehabilitation needed to re-integrate him into society and deter
him from further criminal conduct.

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