United States v. Smith.
Nos. 24-5088 & 24-5096. 6/9/2026. N.D.Okla. Judge Rossman. Child Abuse—Child Neglect—Indian and Non-Indian Defendants—Indian Child—Assimilative Crimes Act—General Crimes Act—US Sentencing Guidelines.
June 9, 2026
Joel Smith, a member of the Cherokee Nation, is married to Amanda Smith, a non-Indian. In 2014, Joel’s then 5-year-old niece, H.M., moved in with the Smiths. H.M. is also a member of the Cherokee Nation. In 2019, H.M. ran away to a neighbor’s home. She looked malnourished and was extremely hungry, wore a diaper, smelled of urine and feces, and showed signs of physical abuse. The neighbor called police, and a subsequent investigation showed that H.M. suffered severe neglect and abuse while living with the Smiths. Joel was charged with one count of child abuse in Indian country and one count of child neglect in Indian country under Oklahoma law. Because he is Indian and his offenses occurred in Indian country, the government had authority to punish both crimes via the Major Crimes Act (MCA). Amanda was charged with one count of child abuse and one count of child neglect under the same Oklahoma statutes. Because Amanda is not Indian, her victim is Indian, and her offenses occurred in Indian country, the government had authority to punish both crimes under the Assimilative Crimes Act (ACA), 18 USC § 13, as applied to Indian country via the General Crimes Act (GCA), 18 USC § 1152. The indictment further charged each defendant with aiding and abetting the other in committing the offenses. The Smiths proceeded to trial. Joel’s primary defense was that he did not abuse or neglect H.M. Amanda’s primary defense was that given that H.M. had challenging medical needs, the government failed to show criminal misconduct. A jury found the Smiths guilty on one count each of child abuse and child neglect. The district court sentenced Joel to 180 months’ imprisonment and Amanda to 240 months’ imprisonment. The Smiths appealed separately, and the Tenth Circuit consolidated the appeals based on their significant factual and legal overlap.
On appeal, Joel argued that his sentence is procedurally unreasonable. He asserted that US Sentencing Guideline (USSG) § 2A2.2 is the most analogous offenses guideline, and the district court miscalculated his advisory USSG range by mistakenly concluding there is no sufficiently analogous guideline for his child abuse conviction under Oklahoma law. Where no guideline has been promulgated for an offense, the district court must “apply the most analogous offense guideline.” USSG § 2X5.1. To find the most analogous offense guideline in a case involving 18 USC §§ 1152 or 1153, courts look at the elements of the state assimilated offense. The Tenth Circuit held that Oklahoma’s child-abuse-by-injury statute is sufficiently analogous to USSG § 2A2.2, aggravated assault. The district court thus procedurally erred by concluding that there was no analogous guideline for Oklahoma’s child-abuse-by-injury statute. Further, the Government failed to show harmlessness.
The Smiths argued that the district court erred by not considering their objection to the jury instruction on aiding and abetting. The district court construed their objection as an untimely motion to dismiss and denied the motion because they failed to show good cause under Fed. R. Crim. P. 12. Rule 12 requires a motion alleging a defect in the indictment to be raised by pretrial motion. An untimely motion can only be considered when the movant shows good cause. Here, the Smiths did not raise a pretrial challenge to the indictments’ allegations that they aided and abetted one another. Before the jury instruction conference, the government proposed a jury instruction on aiding and abetting. Amanda did not propose a different instruction but rather asked the court not to give any aiding-and-abetting instruction and requested to “be dismissed from this indictment in whole.” Joel joined the objection. The district court did not err in denying denied the motion because (1) asking to be dismissed from the indictment in whole was not a jury instruction challenge; and (2) having properly construed the “objection” as a motion to dismiss, the district court did not err in finding the motion untimely under Rule 12.
Amanda contended that the district court erred by not dismissing her indictment on jurisdictional grounds, maintaining that federal courts lack jurisdiction to prosecute her under the ACA and the GCA after Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), which held that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. Amanda maintained that the holding of “concurrent jurisdiction” means the federal government lacked the exclusive jurisdiction required to prosecute her as a non-Indian under the GCA, and similarly lacked jurisdiction to prosecute her under the ACA because her crime was committed “not within the jurisdiction of any state.” However, the plain language of the GCA and ACA allows the federal government to prosecute criminal offenses by a non-Indian against an Indian victim in Indian country, and nothing in Castro-Huerta counsels otherwise. The district court thus did not err by refusing to dismiss her indictment for lack of subject-matter jurisdiction.
Amanda also asserted that the district court erred in denying her motion for acquittal and new trial. However, as she acknowledged, her motion for acquittal and new trial was untimely under Rules 29 and 33, and she failed to show excusable neglect under Rule 45.
Amanda additionally argued that the district court abused its discretion in allowing victim impact statements at sentencing from the state social services worker and the then deputy sheriff because they were not “crime victims” under 18 USC § 3771. Even assuming that these individuals did not qualify as victims under federal law, the district court had discretion at sentencing to consider their letters under § 3661.
Lastly, Amanda contended that her sentencing was fundamentally unfair because the district court accepted four late-submitted victim impact letters, including the two referenced above. Here, the letters were submitted on the eve of sentencing, so Amanda lacked adequate notice of them. But reversal is not required under Rule 32 because the district court did not rely on the letters at sentencing.
The Smiths’ convictions and Amanda Smith’s sentence were affirmed. Joel Smith’s sentence was vacated and the case was remanded for resentencing on both counts of conviction.