by Douglas Ankney

The United States Court of Appeals for the Fifth Circuit held as an issue of first impression that offenses prosecuted under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13, are not subject to the enhanced supervised release terms established by 18 U.S.C. § 3583(k) merely because the most analogous federal offense appears on that subsection’s enumerated list of sex crimes. Because the defendant’s ACA offense was not itself listed in § 3583(k) or otherwise subject to another statutory exception, the Court ruled that § 3583(b)’s general supervised release provision applied, limiting the authorized term to no more than five years for Class A and Class B felonies. The Court vacated the defendant’s 30-year supervised release term, which exceeded the applicable statutory maximum by 25 years, and remanded for resentencing.

Background

In April 2022, a mother reported Keisha Lyn Swarner to security forces at Joint Base San Antonio Lackland, alleging that Swarner had been sending sexually explicit text messages to her 13-year-old son. An investigation revealed that Swarner, whose 12-year-old daughter was the boy’s girlfriend, had arranged secret meetings between the two children at her home, sent multiple text messages directing the boy to engage in sexual acts with her daughter, and solicited both children to exchange sexually explicit images.

Swarner pleaded guilty on December 21, 2023, to Sexual Performance by a Child under the ACA, which assimilated Texas Penal Code § 43.25 into a federal offense. Although the Government had initially charged Swarner with several federal sex offenses under 18 U.S.C. §§ 2252A(a)(2), 2251(a), and 2422(b), it agreed to dismiss all of those charges in exchange for her plea to the ACA count. The presentence report classified Swarner’s offense as a Class A felony based on the Texas statutory maximum and identified 18 U.S.C. § 3583(k), the enhanced supervised release provision for enumerated federal sex offenses, as the applicable statute. The U.S. District Court for the Western District of Texas sentenced Swarner to 325 months of imprisonment and 30 years of supervised release.

Swarner timely appealed, arguing that her statutory maximum for supervised release was five years under § 3583(b), not the five-years-to-life range authorized by § 3583(k). The Government countered that the District Court properly applied § 3583(k) because the most analogous federal offense for sentencing purposes appeared on that subsection’s enumerated list.

Analysis

The Court reviewed de novo whether the supervised release term exceeded the statutory maximum, explaining that such a challenge is cognizable even if the defendant did not preserve the objection and is not barred by an appeal waiver. United States v. Vera, 542 F.3d 457 (5th Cir. 2008); United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014); United States v. Leal, 933 F.3d 426 (5th Cir. 2019).

The Court began by outlining the framework governing ACA sentences. It noted that the ACA fills gaps in federal criminal law by incorporating state offenses committed on federal enclaves, making the defendant “guilty of a like offense and subject to a like punishment.” Lewis v. United States, 523 U.S. 155 (1998). While state law sets the statutory minimum and maximum for terms of imprisonment, federal sentencing law, including the Sentencing Guidelines, governs the actual sentence imposed within that range. United States v. Flores, 130 F.4th 465 (5th Cir. 2025); United States v. Marmolejo, 915 F.2d 981 (5th Cir. 1990). To determine the appropriate sentence, courts apply the Guideline for the most analogous federal offense. § 2X5.1.

Turning to supervised release, the Court stated that § 3583(b) establishes the general statutory maximums – five years for Class A or Class B felonies – applicable to all federal offenses “[e]xcept as otherwise provided.” Section 3583(k), enacted through the PROTECT Act in 2003, carves out an exception for specifically enumerated federal sex offenses, imposing a mandatory minimum of five years and extending the maximum to life. The Court characterized the question of whether § 3583(k) can set the supervised release range for ACA offenses merely analogous to its enumerated crimes as one of first impression in the Fifth Circuit.

The Court held that § 3583(k) applies exclusively to its listed offenses and cannot be extended to ACA crimes. Its reasoning rested on several independent grounds. First, the statutory text is unambiguous. Noting that Congress has demonstrated its ability to clearly authorize supervised release maximums beyond § 3583(b), both in § 3583(k) for enumerated sex offenses and in 21 U.S.C. § 841 for certain drug-trafficking crimes, the Court concluded that had Congress intended § 3583(k) to reach ACA offenses, it could have said so in either statute but chose not to. The Court invoked the principle that its “inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176 (2004).

Second, applying § 3583(k) to Swarner would effectively impose the statutory consequences of crimes for which she was never convicted. The Court determined that this concern was especially acute given that Swarner had originally been charged with federal sex offenses listed in § 3583(k), but the Government dismissed those charges when she entered her guilty plea to the ACA offense. Applying § 3583(k) in these circumstances amounted to reviving the dropped federal charges solely to increase the supervised release ceiling by at least 25 years, the Court reasoned.

Third, the Court rejected the Government’s alternative theories. Expanding § 3583(k)’s enumerated list to encompass analogous offenses would create an open-ended standard with no clear limiting principle, the Court observed. It also declined to treat the ACA’s “like punishment” clause as an independent exception to § 3583(b)’s statutory maximums. Under Flores, supervised release for an ACA offense is governed by federal supervised-release policy and is not capped by the state-law maximum. The Court explained that if the ACA alone displaced § 3583(b), District Courts would have no congressionally authorized maximum when imposing supervised release on ACA defendants.

Conclusion

Accordingly, the Court vacated Swarner’s 30-year supervised release term and remanded for resentencing within the five-year statutory maximum authorized by 18 U.S.C. § 3583(b). See: United States v. Swarner, 168 F.4th 309 (5th Cir. 2026).  

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