The Oklahoma Attorney General’s Office is asking the state’s appeals court to reinstate the conviction and sentence of Victor Manuel Castro-Huerta, stating he could be released as soon as next week if the state does not act.

Castro-Huerta was the center of the state’s case to reel back the U.S. Supreme Court’s 2020 decision in McGirt v. Oklahoma — ruling Congress never “disestablished” the reservation status of the Muscogee (Creek) Nation for criminal prosecution purposes with The Oklahoma Court of Criminal Appeals in 2021 applying the ruling to the Choctaw, Cherokee, Chickasaw, Seminole, and Quapaw Nations.

The high court ruled in Castro-Huerta v. Oklahoma that the state shares criminal jurisdiction with the federal government in crimes committed by non-Native Americans against Native Americans in “Indian Country” and overturned the dismissal of Castro-Huerta’s state case.

Castro-Huerta was originally convicted and sentenced in 2015 to 35 years in the custody of the Oklahoma Department of Corrections for child neglect.

Due to the victim being Native American, the conviction was vacated by the Oklahoma Court of Criminal Appeals with the federal government later indicting him with child neglect.

Castro-Huerta accepted a plea deal of seven-years imprisonment in federal custody with credit for time served while in state custody and is currently scheduled to be formally sentenced Aug. 8.

“At which time he will likely have discharged his federal sentence and be released — either outright or to U.S. Immigration and Customs Enforcement” for deportation to Mexico, the state wrote in a “notice of the possibility of appellant’s imminent release from federal custody” filed by the state Monday.

Attorneys for the AG’s office wants Castro-Huerta to serve the remainder of his state sentence due to the nature of his crime.

Castro-Huerta’s “treatment of his five-year-old disabled step-daughter was beyond deplorable,” the state wrote. “Dehydrated, emaciated, and covered in lice and excrement, she weighed only 19 pounds. Investigators later found her bed filled with bedbugs and cockroaches. Appellant’s 35-year sentence is just and appropriate. He should not be able to escape the full consequences of his criminal behavior.”

Attorneys for Castro-Huerta argue that the state’s argument is “unlawful” due to an appeals court being only able to recall mandates in extraordinary circumstances and as a last resort.

The U.S. Attorney’s Office for the Northern District said in a Monday federal filing that Castro-Huerta “is currently subject to only one sentence: the federal term to be imposed in this case.”

The federal filing explains that the plea deal had two sentencing options depending on if Castro-Huerta’s state sentences was reinstated with the first option being credit for time served since Dec. 14, 2015.

Under the second sentencing option, the plea deal stipulated if the state sentence was reinstated, Castro-Huerta’s federal sentence should run concurrently with his state sentence.

“As of this filing, Mr. Castro Huerta’s state sentence has not yet been reinstated,” the U.S. Attorney’s Office wrote. “While the state exercised primary jurisdiction over Mr. Castro Huerta based upon his prior state sentence, that sovereign relinquished primary jurisdiction over him on Sept. 27, 2021, when the state court dismissed his case.”

A ruling the matter by OCCA was not made as of press time Wednesday.

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