Cite as: 523 U. S. 155 (1998)
Scalia, J., concurring in judgment
been required to utilize the Sentencing Guidelines provisions applicable to that offense, and the court might have imposed a sentence below the statutory maximum. An upward departure from that range, if appropriate, could reach the statutory maximum of a life sentence, but it is for the district court in the first instance to make such a determination. Resentencing under the Guidelines is therefore appropriate if this Court vacates petitioner's conviction on the assimilated state offense and orders entry of a judgment of conviction for federal second degree murder." Brief for United States 38 (footnote and citations omitted).
We consequently vacate the Fifth Circuit's judgment in respect to petitioner's sentence and remand the case for resentencing.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
As the proliferation of opinions indicates, this is a most difficult case. I agree with the Court's conclusion that the Assimilative Crimes Act (ACA), 18 U. S. C. § 13(a), does not incorporate Louisiana's first-degree murder statute into the criminal law governing federal enclaves in that State. I write separately because it seems to me that the Court's manner of reaching that result turns the language of the ACA into an empty vessel, and invites the lower courts to fill it with free-ranging speculation about the result that Congress would prefer in each case. Although I agree that the ACA is not a model of legislative draftsmanship, I believe we have an obligation to search harder for its meaning before abandoning the field to judicial intuition.
The Court quotes the text of the ACA early in its opinion, but then identifies several policy reasons for leaving it behind. The statutory language is deceptively simple.
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