Appeal from a judgment of conviction entered in the Southern District of New York, Henry F. Werker, Judge, after a bench trial, convicting Kenneth Vaughan of second degree burglary in violation of § 140.25(1) (b) of the New York Penal Law, as incorporated under the Assimilative Crimes Act, 18 U.S.C. § 13 (1976), and of assault in violation of 18 U.S.C. § 113(d) (1976).
Lumbard, Newman and Winter, Circuit Judges.
On May 14, 1981, Kenneth Vaughan surreptitiously entered Room 1804 in the United States Courthouse in Manhattan, an area closed to the public, and attempted to steal a change purse from the desk of Fern LaBorde, a court employee. LaBorde, who had left her office shortly before Vaughan arrived, returned and surprised appellant during the attempted theft. Vaughan assaulted LaBorde, fled from the office and was apprehended shortly thereafter in the courthouse lobby.
Vaughan was convicted in the district court after a one-day bench trial before Judge Henry F. Werker, of second-degree burglary in violation of § 140.25(1) (b) of the New York Penal Code,*fn1 as incorporated under the Assimilative Crimes Act, 18 U.S.C. § 13 (1976) (the "Act"),*fn2 and of assault in violation of 18 U.S.C. § 113(d) (1976). Second degree burglary is classified as a violent felony under § 70.02(1) (b) of the New York Penal Law, and Vaughan had previously been convicted of a violent felony offense. The trial court, therefore, followed the state's sentencing provisions that govern second violent felony offenders in fashioning its sentence, N.Y. Penal Law § 70.04(3) (b) (McKinney's 1980 Supp.),*fn3 and sentenced Vaughan to a term of eight years' imprisonment on the burglary count, the minimum that a second violent felony offender must receive under the enhanced sentencing provisions of § 70.04. Vaughan also received a concurrent six-month term of imprisonment on the federal assault count. Moreover, the trial court adhered to the state mandatory confinement period for second violent felony offenders and imposed a minimum four-year period of incarceration before Vaughan could be eligible for parole. N.Y. Penal Law § 70.04(4) (McKinney's 1980 Supp.).*fn4
Vaughan appeals from this judgment of conviction, contending that since the Government could have prosecuted him under federal assault and larceny statutes, 18 U.S.C. §§ 113, 661 (1976), it was barred from prosecuting appellant under the Act for second degree burglary in violation of New York state law. Appellant further claims that, assuming the Government properly prosecuted him for second degree burglary and assault, the district court erred in applying New York's second felony offender statute and in imposing its minimum prison term provisions.
We affirm the judgment of conviction and the sentence imposed thereon insofar as it sets concurrent terms of imprisonment of eight years and six months. We hold, however, that the state sentencing provision which requires a minimum period of confinement was not binding on the district court, and we therefore vacate the provision of the judgment that imposes a minimum four-year period of incarceration before Vaughan could be eligible for parole.
In the absence of a specific federal criminal statute, the Act makes conduct punishable by a state's criminal law a violation of federal law when committed on or within a federal enclave, such as a federal courthouse, within the state. 18 U.S.C. § 13 (1976). The Act thus "use[s] local statutes to fill in the gaps in the Federal Criminal Code where no action of Congress had been taken to define the missing offenses." Williams v. United States, 327 U.S. 711, 719, 90 L. Ed. 962, 66 S. Ct. 778 (1946).
Although there is no specific federal statute prohibiting burglaries on or within federal enclaves, Vaughan contends that the Government improperly prosecuted him under the Assimilative Crimes Act for second degree burglary in violation of N.Y. Penal Law § 140.25(1) (b) because it could have prosecuted him under federal assault and larceny statutes. 18 U.S.C. §§ 113, 661 (1976). Appellant claims that Williams v. United States, supra, and its progeny require reversal of his burglary conviction. The Supreme Court held in Williams that a federal prosecution under the Act could not be predicated upon Arizona's statutory rape provision, which fixed the age of consent at 18, because Congress in an applicable federal law for the identical offense had set the age of consent at 16. Id. at 716-18.
We find no merit to Vaughan's claim and conclude that he was properly prosecuted under the Act for burglary in violation of New York State law. Williams stands merely for the proposition that a specific federal criminal statute which defines and prohibits a particular offense preempts incorporation of the applicable state law regarding that very same offense. See id. at 716-18. See also United States v. Sharpnack, 355 U.S. 286, 289, 293, 2 L. Ed. 2d 282, 78 S. Ct. 291 (1958); Fields v. United States, 438 F.2d 205, 207-08 (2d Cir.) cert. denied, 403 U.S. 907, 29 L. Ed. 2d 684, 91 S. Ct. 2214 (1971). Congress has not enacted a specific federal burglary statute. Accordingly, under the Act the state law of burglary is to be applied. United States v. Prejean, 494 F.2d 495, 497 (5th Cir. 1974); United States v. Johnson, 426 F.2d 1112, 1116 (7th Cir.), cert. denied, 400 U.S. 842, 91 S. Ct. 86, 27 L. Ed. 2d 78 (1970).
Moreover, burglary and larceny are separate and distinct offenses. "Where the state statute provides a theory essentially different from that provided in the federal statute, the government can proceed on either statute." Fields v. United States, supra, 438 F.2d at 207. Accord, e.g., United States v. Eades, 633 F.2d 1075, 1077 (4th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed. 2d 203 (1981) (upholding conviction based on state sexual offense statute despite overlap between federal assault provisions and state law); United States v. Jones, 244 F. Supp. 181 (S.D.N.Y.), aff'd, 365 F.2d 675 (2d Cir. 1965) (prosecution under Act based on state disorderly conduct statute proper despite applicability of federal criminal provision).
In Fields v. United States, supra, we held that the defendant had been properly prosecuted under the Act for a malicious shooting, in violation of state law, even though his acts also violated the federal assault statute. Since the federal statute proscribed assaults and the state statute focused on a specific class of batteries, we found that the state statute presented an "essentially different" theory of criminal liability. Fields v. United States, supra, 438 F.2d at 207-08. Similarly, the New York state burglary statute is based on a theory essentially different from that provided in either the federal assault or larceny statutes. The proof essential to commit the crime of burglary requires evidence of entry into a building with intent to commit a crime therein, which is not a requisite to establish assault or larceny under federal statutes. As a result, convictions under the Act premised on state burglary statutes in New York are valid despite the fact that the evidence establishing the burglary also tends to prove assault and larceny. See, e.g., United States v. Lavender, 602 F.2d 639, 640-41 (4th Cir. 1979); United States v. Big Crow, 523 F.2d 955 (8th Cir. 1975), cert. denied, 424 U.S. 920, 47 L. Ed. 2d 327, 96 S. Ct. 1126 (1976).
We now turn to Vaughan's claim that the district court erred in applying New York's second felony offender statute and in imposing its mandatory confinement period in fashioning the sentence on the second degree burglary conviction.
The Assimilative Crimes Act provides that a person on a federal enclave whose conduct would have violated state law "shall be guilty of a like offense and subject to a like punishment." 18 U.S.C. § 13 (1976) (emphasis added). It is a well established principle that a state statute that fixes the length of a prison term should control the sentence imposed by federal courts under the Act. Fields v. United States, supra, 438 F.2d at 207. This principle gives effect to Congress' intent that federal prosecutions under the Act should reflect local policies of the various states. United States v. Smith, 574 F.2d 988, 992 (9th Cir.), cert. denied, 439 U.S. 852, 99 S. Ct. 158, 58 L. Ed. 2d 156 (1978). State statutes mandating recidivist sentences reflect ...