U.S. v. Monts, 01-6384.

• Decision Date: 13 November 2002
• Docket Number: No. 01-6384.,01-6384.
• Citation: 311 F.3d 993
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Arthur MONTS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

311 F.3d 993

UNITED STATES of America, Plaintiff-Appellee, v. James Arthur MONTS, Jr., Defendant-Appellant.

No. 01-6384.

United States Court of Appeals, Tenth Circuit.

November 13, 2002.

COPYRIGHT MATERIAL OMITTED

Teresa Black, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant James Arthur Monts, Jr. was convicted by a jury of two counts of failure to pay child support obligations in violation of the Child Support Recovery Act ("CSRA"), 18 U.S.C. § 228(a)(1) (Count 1), and the Deadbeat Parents Punishment Act ("DPPA"), 18 U.S.C. § 228(a)(3) (Count 2), (collectively, "§ 228(a)"). He was sentenced to a term of imprisonment of 15 months followed by one year of supervised release on Count 2, and a term of probation of five years on Count 1, each count to run concurrently. The court also ordered him to pay restitution of $66,415.56.

On appeal, Mr. Monts challenges his conviction on the basis that (1) § 228(a) is unconstitutional because it violates the Commerce Clause, the Ex Post Facto Clause and the Tenth Amendment; (2) prosecution under § 228(a) is prohibited here by the New York statute of limitations and (3) the evidence is insufficient to support his convictions. He challenges his sentence on the basis that the district court erred (1) by including in its calculation amounts of past due child support that were barred by the New York statute of limitations; (2) by applying the "more than minimal planning" enhancement and (3) by ordering restitution that included past due child support barred by the New York statute of limitations. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

Background

Mr. Monts and Diane Cooper married in New York in 1973. After their daughter Melissa was born on November 9, 1974, the couple separated. A final child support order was entered in a Westchester County, New York court on October 30, 1975, ordering Mr. Monts to pay child support of $50 per week to Ms. Cooper. Mr. Monts was present when the final support order was entered. He made several payments but was in arrears within months of the entry of the order. The couple's divorce became final in 1977. Shortly thereafter, Mr. Monts left New York and lived in various other states over the years. He paid no child support. Ms. Cooper left New York in 1981 and eventually settled in Oklahoma in 1982. Ms. Cooper made several unsuccessful efforts to have the support order enforced. Finally, in 1996, Ms. Cooper learned Mr. Monts' location and sought to have the order enforced in his state of residence, Virginia. Her efforts finally met with some success, albeit limited. Virginia was able to collect $6,765.00 of the unpaid child support by garnishing his wages. The balance remained unpaid.

Discussion

The CSRA makes it a federal criminal offense for a person to "willfully fail[ ] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000." 18 U.S.C. § 228(a)(1). The DPPA likewise makes it a federal felony offense for a person to "willfully fail[ ] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000." 18 U.S.C. § 228(a)(3). For each provision, a "support obligation" means "any amount determined under a court order or an order of an administrative process pursuant to the law of a State ... to be due from a person for the support and maintenance of a child." 18 U.S.C. § 228(f)(3). Finally, upon a conviction under either provision, "the court shall order restitution under section 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing." 18 U.S.C. § 228(d).

I. Constitutionality of § 228(a)

We review challenges to the constitutionality of a statute de novo, United States v. Bolton, 68 F.3d 396, 398 (10th Cir.1995), and begin the analysis with a presumption of constitutionality, United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

(a) Commerce Clause

Mr. Monts argues that Congress exceeded its authority under the Commerce Clause because both the CSRA and the DPPA: "(1) regulate an activity that neither constitutes nor involves commerce; (2) lack the prerequisite interstate nexus sufficient to confer federal jurisdiction; (3) are overbroad; and (4) represent an unconstitutional foray by the federal government into domestic relations, a power traditionally reserved to states." Aplt. Br. at 13. Mr. Monts acknowledges that in United States v. Hampshire, 95 F.3d 999, 1001-1006 (10th Cir.1996), this court considered and rejected these arguments with regard to the CSRA. However, Mr. Monts maintains that two recent Supreme Court cases, Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), suggest that § 228(a) no longer bears a sufficient interstate nexus and is thus unconstitutional despite the reasoning of Hampshire.

We disagree. In Jones, the Supreme Court held that an owner-occupied dwelling not used for any commercial purposes was not property "used" in interstate commerce under the federal arson statute. 529 U.S. at 859, 120 S.Ct. 1904. The result in Jones turned on the Court's conclusion that only property "currently used in commerce or in an activity affecting commerce" exhibits a sufficient interstate nexus to satisfy the requirement under the Commerce Clause. Id. As a result, the Jones reasoning merely reaffirms the proposition that Congress can, consistent with its Commerce Clause power, criminalize conduct provided such conduct bears a sufficient interstate nexus as required by United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

In holding that Congress exceeded its Commerce Clause power in enacting the Violence Against Women Act ("VAWA"), the Supreme Court in Morrison essentially reiterated its Lopez analysis and rested its conclusion on the fact that the VAWA failed to satisfy the Lopez requirements. Morrison, 529 U.S. at 613-19, 120 S.Ct. 1740. Unlike the VAWA in Morrison, § 228(a) directly involves an activity that is both economic and interstate in nature, specifically, the regulation of a court-ordered obligation to pay money in interstate commerce. Hampshire, 95 F.3d at 1003. Furthermore, unlike the VAWA, § 228(a) contains a jurisdictional element establishing that the activity in question is interstate in nature by requiring as an essential element that the defendant reside in a different state than the child for whom support is owed. 18 U.S.C. § 228(a). And lastly, as discussed in Hampshire, 95 F.3d at 1004, Congress made explicit findings concerning the impact of delinquent parents on interstate commerce, further supporting the conclusion that § 228(a) is within the Lopez framework.

(b) Ex Post Facto Clause and Tenth Amendment

Mr. Monts also attacks the constitutionality of § 228(a) by arguing that it violates the Ex Post Facto Clause and the Tenth Amendment. Mr. Monts bears the burden of distinguishing Hampshire's holding that neither the Ex Post Facto Clause nor the Tenth Amendment are valid bases to attack the constitutionality of § 228(a). Hampshire, 95 F.3d at 1004-06. Though Mr. Monts attempts to distinguish Hampshire by characterizing this as an "as applied" case, Hampshire is controlling.

Though noted in passing, Mr. Monts elected not to brief his federalism and comity objections to § 228(a). Thus, we deem these claims abandoned below and decline to reach them. See O'Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir.1990).

II. New York Statute of Limitations

Mr. Monts next argues that prosecution under § 228(a) is barred where the statute of limitations of the state issuing the underlying support order renders all or part of the child support arrearage unenforceable. The district court rejected this argument, holding that the default federal statute of limitations found at 18 U.S.C. § 3282 applied instead.

Mr. Monts' reasoning on this issue is somewhat involved and proceeds as follows. In New York, the current statute of limitations for an action or proceeding to enforce a support order is twenty years. N.Y.C.P.L.R. § 211(e). However, because this provision only applies to support orders entered after 1987, the default six year statute of limitations applies to support orders entered earlier, as is the case here. N.Y.C.P.L.R. § 213(1). Mr. Monts maintains that when the grand jury returned his indictment on August 16, 2000, the six-year New York limitations period barred any action for past due child support accruing before August 16, 1994. Thus, Mr. Monts argues that his past due balance was effectively reset to zero on August 16, 1994. On that day, his daughter was twelve weeks from her twentieth birthday. Because New York law requires continued support under a support order until the child's twenty-first birthday, Mr. Monts contends that his enforceable support obligation only amounted to the 64 weeks accruing between August 16, 1994 and his daughter's twenty-first birthday on November 9, 1995, a sum total of approximately $3,200.00.

As noted above, because Mr. Monts then resided in Virginia, the Virginia Division of Child Support Enforcement ("Virginia DCSE") pursued him on behalf of Ms. Cooper in early 1996. After notifying Mr. Monts of his $42,564.07 arrearage and informing him how to contest the enforcement, the Virginia DCSE began garnishing his wages, collecting $6,765.00 until December 14,...