IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30048
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD GEORGE HOWARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
October 31, 2002
Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI,* Judge.1
PER CURIAM:**
Ronald George Howard appeals his conviction and sentence for
violation of 18 U.S.C. § 228(a)(3), a subsection of the Child
Support Recovery Act (CSRA). We affirm.
Facts and Proceedings Below
*The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
**
Pursuant to 5TH CIR. R.47.5 the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
On September, 18, 1997, the Juvenile and Domestic Relations
District Court of Prince William County in the State of Virginia
ordered Howard to pay child support to Patricia Howard for the
benefit of his three minor children, Jennifer Marie, Christopher,
and Brandon Thomas, over whom Ms. Howard had, and continued to
have, custody. The order required $300 per month in support per
child until each child reached 18 years old, except that support
for Jennifer Marie continued for six months after her 18th
birthday. Howard later moved to Arizona and Florida. Ms. Howard
and the children moved to Louisiana around the time the couple
separated and resided there between January 1, 1999 and April 14,
2001, the period charged in the indictment. As of the trial date,
the youngest child, Brandon Thomas, was 15, and the $300 per month
obligation continued to accrue.
On May 25, 2001, Howard was indicted for violation of 18
U.S.C. § 228(a)(3), a subsection of the Child Support Recovery
Act (CSRA), which provides criminal penalties for
“Any person who -
3) willfully fails 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.”
Howard sought dismissal of the indictment, alleging that the
CSRA exceeds the federal commerce power. The district court denied
that motion (and a similar one made post-verdict).
The government introduced evidence at trial showing that
2
Howard was a computer systems analyst and programmer, who earned
more than $58,000 in 1999 and $63,000 in 2000, as well as evidence
that Howard repeatedly promised to pay the support he owed, but
later failed to do so. As of the date of sentencing, Howard owed
$84,535.51 in child support. During the two years and four months
charged in the indictment, Howard made no child support payments.
The jury returned a guilty verdict.
The district judge sentenced Howard to the statutory maximum
of twenty-four months’ imprisonment. Because there are not
sentencing guidelines specifically applicable to the CSRA, the
court applied the most analogous sentencing guideline, § 2B1.1
(Larceny, Embezzlement, and Other Forms of Theft). The range set
forth in this guideline is ten to sixteen months. The government
moved for an upward departure in accordance with Application Note
15 to § 2B1.1. The court imposed an eight month upward departure
in addition to the sixteen months authorized by the guideline for
a total sentence of twenty-four months.
Howard filed a timely notice of appeal on December 28, 2001
challenging the constitutionality of the CSRA under the Commerce
Clause and the permissibility of the court's upward sentencing
departure.
Discussion
I. Commerce Clause
We rejected a similar challenge to CSRA in United States v.
3
Bailey, 115 F.3d 1222 (5th Cir. 1997), and Bailey binds us absent
an intervening contrary decision by the en banc court or the
Supreme Court. Brown v. United States, 890 F.2d 1329 (5th Cir.
1989). Howard urges us to reexamine Bailey in light of United
States v. Morrison, 120 S.Ct. 1740 (2002), and Jones v. United
States, 120 S.Ct. 1904 (2000). We decline the invitation. Bailey
expressly sustained the CSRA under the first and second of the
categories of commerce clause power outlined in United States v.
Lopez, 115 S.Ct. 1624 (1995), and Bailey expressly declined to
address the third Lopez category of commerce clause power. Bailey
at 1226. Morrison, by contrast, addressed only the third Lopez
category. Morrison, 120 S.Ct. at 1749. Jones is likewise
unavailing; it was decided as a matter of statutory construction,
and it appears that the statute under consideration would have
called for analysis under Lopez category three, not categories one
or two. Accordingly, we reject appellant’s commerce clause
challenge to the CSRA on the basis of Bailey, which we are not free
to reconsider.
II. Upward Sentencing Departure
The defendant also appeals the district court's upward
sentencing departure. There is no sentencing guideline specific to
the CSRA, but the commentary to the Contempt guideline, § 2J1.1,
4
mandates application of the most analogous guideline under § 2X51.1
It is not disputed that § 2B1.1 was properly applied,
resulting in a base level of 4, with 8 points added because the
support Howard failed to pay exceeded $70,000. It is also
uncontested that with an offense level of 12 and a criminal history
category of I, the defendant's guideline range was 10-16 months.
The district court, however, departed upward an additional eight
months for a total sentence of twenty-four months.
A sentencing court generally is required to apply the
Guidelines Manual in effect at the time of sentencing. 18 U.S.C. §
3553(a)(4). However, where application of the guidelines in effect
at sentencing would result in a more severe sentence than the
version in effect at the time of the commission of the offense, the
Ex Post Facto Clause of Article I of the Constitution requires use
of the earlier version of the guidelines. United States v. Rivers,
50 F.3d 1126, 1129 (2d Cir. 1995); United States v. Rodriguez, 989
F.2d 583, 587 (2d Cir. 1993). The last date of the offense, as
alleged in the indictment, is the controlling date for ex post
facto purposes. U.S.S.G. § 1B1.11, comment. (n.2); United States v.
Gigante, 39 F.3d 42, 50 (2d Cir. 1994).
1
“For offenses involving the willful failure to pay court-ordered child support (violations
of 18 U.S.C. § 228), the most analogous guideline is § 2B1.1 (Larceny, Embezzlement, and Other
Forms of Theft). The amount of the loss is the amount of child support that the defendant
willfully failed to pay. Note: This guideline applies to.....any offense under 18 U.S.C. § 228(a)(2)
and (3)...” § 2J1.1, app. n.2.
5
Here, April 14, 2001 is the last date charged in the
indictment and sentencing occurred on December 19, 2001. The 2001
Sentencing Guidelines went into effect on November 1, 2001. As
such, we will assume that the defendant is entitled to have his
upward departure set aside if it was improper under either the 2000
or 2001 edition of the Guidelines.
The 2000 Sentencing Guidelines provide simply that an upward
departure may be warranted “in cases where the loss determined
under subsection (b)(1) does not fully capture the harmfulness of
the conduct.” § 2B1.1, app. n.14.
The 2001 Sentencing Guidelines are more elaborate. They state
in relevant part:
“There may be cases in which the offense level determined
under this guideline substantially understates the
seriousness of the offense. In such cases, an upward
departure may be warranted. The following is a non-
exhaustive list of factors that the court may consider in
determining whether an upward departure is warranted:
(i) A primary objective of the offense was an
aggravating, non-monetary objective. For example, a
primary objective of the offense was to inflict emotional
harm.
(ii) The offense caused or risked substantial non-
monetary harm. For example, the offense c a u s e d
physical harm, psychological harm, or severe emotional
trauma, or resulted in a substantial invasion of a
privacy interest, (through, for example, the theft of
personal information such as medical, educational, or
financial records).
(iii) The offense involved a substantial amount of
interest of any kind, finance charges, late fees,
penalties, amounts based on an agreed-upon return or rate
of return, or other similar costs, not included in the
determination of loss for purposes of subsection (b)(1).
(iv) The offense created a risk of substantial loss
6
beyond the loss determined for purposes of subsection
(b)(1).
(v) The offense endangered the solvency or financial
security of one or more victims.....Ӥ 2B1.1, app. n.15
In both versions of the guidelines, the Introduction instructs
that district courts are authorized to depart from the sentence
imposed by the guidelines in cases that feature “aggravating or
mitigating circumstances of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission.” U.S.S.G.
Ch. 1 Pt. A (b) (2001); Koon v. United States, 116 S. Ct. 2035,
2044 (1996).
In Koon, the Court held that a district court's sentencing
departure “will in most cases be due substantial deference, for it
embodies the traditional exercise of discretion by a sentencing
court.” Id. at 2046. The Court declared that a unitary abuse of
discretion standard was to be used when reviewing departure
decisions. Id. at 2047-48. The Court effectively rejected each of
the multi-step approaches to reviewing sentencing departures that
had been adopted by the various circuits and “collapsed” the steps
into a single inquiry. See United States v. Cali, 87 F.3d 571,
579-80 (1st Cir. 1996) (acknowledging that Koon established a
unitary abuse of discretion standard for reviewing departure
decisions).
The Court noted, however, that even under this deferential
abuse of discretion standard, a “district court by definition
abuses its discretion when it makes an error of law.” Id. at 2047.
7
A district court abuses its discretion, and incorrectly applies the
guidelines, where it relies on an invalid departure ground.
Williams v. United States, 112 S. Ct. 1112 (1992). “Whether a
factor is a permissible basis for departure is a question of law we
review de novo.” United States v. Reyes, 239 F.3d 722, 744 (5th
Cir. 2001), cert. denied sub nom.
In Koon, the Court outlined what factors a district court
should take into consideration when confronted with the question of
whether or not to depart in a particular case:
“[A] sentencing court considering a departure should ask
the following questions:
1) What features of this case, potentially, take it
outside the Guidelines' 'heartland' and make of it a
special, or unusual, case?
2) Has the Commission forbidden departures based on those
features?
3) If not, has the Commission encouraged departures based
on those features?
4) If not, has the Commission discouraged departures
based on those features?”
Koon, 116 S.Ct. 2035, 2045.
Ms. Howard’s victim impact statement, which was before the
court at sentencing, reflects that, as a result of appellant's
failure to pay child support, her daughter could not attend college
and that she had difficulty affording clothing for the family. She
suffered anger, anxiety, fear, grief, numbness, sleep loss,
insecurity, trouble concentrating, chronic fatigue, and depression
due to the absence of child support. Under the 2001 Guidelines,
this would implicate the encouraged factors: (ii) causing
8
substantial non-monetary harm and (v) endangering the solvency or
financial security of one or more victims. While the 2000
Guidelines offer less guidance, since the (b)(1) calculation is
purely based on the monetary value of the loss, we cannot say that
the trial court abused its discretion by finding that, in light of
the kinds of non-monetary harms attested to by Ms. Howard, this
calculation does not fully capture the harmfulness of the conduct.
Moreover, taking the introductory comments into account, while it
can be argued that Mr. Howard's conduct is regrettably not much
different in kind than the typical deadbeat parent, the trial
court's finding that it is different to a meaningful degree is not
an abuse of discretion.
Furthermore, the Eighth Circuit has recognized that cases
requiring application of the “most analogous” guideline under
section 2X5.1 are “inherently out of the ordinary” and that
district courts should have "freedom to fashion the appropriate
sentence in these unconventional situations on a case by case
basis.” United States v. Osborne, 164 F.3d 434, 438 (8th Cir.
1999). The Seventh Circuit expressed “serious[] doubt that a case
in which a district court is required to apply the most 'analogous'
guideline pursuant to U.S.S.G. § 2X5.1 can ever be found to fall
within the 'heartland' of that guideline.” United States v. Leahy,
169 F.3d 433, 441 (7th Cir. 1999). While we decline to reach the
question of whether this Court should similarly hold that there is
9
no heartland in CSRA cases, the fact that the Sentencing Commission
did not specifically address failure to pay child support makes it
less likely that they took into account the kind and degree of harm
in this particular case.
The appellant, however, alleges that the district court
departed upward simply because it disagreed with the guidelines.
“Dissatisfaction with the available sentencing range or preference
for a different sentence than that authorized by the guidelines is
not an appropriate basis for a sentence outside the applicable
guideline range.” United States v. McDowell, 109 F.3d 214, 219 (5th
Cir. 1997) (quoting U.S. Sentencing Guideline Manual § 5K2.0
commentary at 385 (2001)).
The appellant cites the following colloquy at sentencing:
“The Court: I think part of the problem is because the
guidelines don't have a particular category for failure
to pay child support, you are just tossed over into the
general loss, financial loss category....
The Court: Mr. Howard, I think this may well be the first
time I have upward departed from the guidelines since I
have been here but, I think, it is very much justified.
You obviously are a bitter person, you have a chip on
your shoulder that is a mile high and that's the burden
that your children shouldn't be bearing, whatever caused
it is for you...
The Court: I think, frankly, before I realized that there
was a statutory maximum, I had actually come to a
sentence of three years. And the reason I came to that
was because there were three children, not one child, and
I thought a year for each child. Plus it has been three
years since any money was paid off. And I was frankly
disappointed to find out that my maximum is only twenty-
four months, two years. I don't have any indication, Mr.
Howard, that you really have any intention to pay this
debt at all. And, frankly, I haven't seen in too many
defendants a more belligerent attitude than the one I
10
have seen in you. I think it's ashamed [sic] that your
children are the ones that had to bear the consequences
of your attitude.
Defendant: My attitude?
The Court: Yes, your attitude.
Defendant: She is the one that can't raise my kids.
The Court: And it's being demonstrated again right here
for the record...
The Court: I find for the reasons that were stated in the
government's Motion for an Upward Departure, as well as
the reasons stated by the government today, and for the
reasons I have stated, that the aggravating circumstances
in this case are the kind and degree not adequately taken
into consideration by the guidelines and, therefore, the
upward departure is warranted.”
The defendant relies entirely on a colloquy in McDowell2 for the
proposition that the district court's statements here manifest the
same dissatisfaction and thus requires the sentence be invalidated,
as it was in McDowell. However, the cases are distinguishable.
First, the statement in this case was purely hypothetical,
suggesting what the court might have done if no guidelines were
applicable to this case. Furthermore, the judge here did not state
that the sentencing guideline “shocked her conscience.” That is
2
In McDowell, the relevant statements in the sentencing colloquy were:
“. . .Here's what just shocks my conscience. The offense level in this matter by the
guidelines is 15 and the criminal history category is I, as I recall. . . . That provides for 18
to 24 months. If I gave you 24 months -- you stole $292,000 that I want to doubt real
serious you're going to have the wherewithal to pay back. So in essence what you will
accomplish, if I give you two years, is . . . you're in essence basically earning $145,000 a
year. . . . So what Im saying is that giving you two years, I really question how much
punishment that is, inasmuch as you have had the benefit, the use and enjoyment, as well
as your family, of $292,000 of Mr. Munson and his family's money. So I'm going to
sentence you at an offense level of 19, departing upward four levels because of the similar
uncharged offense . . . and I'm going to sentence you to 37 months. So now you're
making 70 or 80 thousand a year while you sit in jail.” McDowell, 109 F.3d at 218.
11
quite different than the mere implication here that, were this
court starting from scratch, it might have come up with guidelines
that do not exactly mirror those in place. Although some of the
statements here may not have been ideally worded, they do not rise
to the level of demonstrating an unwillingness to follow the
guidelines.
While some of the factors used by the district court in this
case to justify its upward departure, such as the defendant's
attitude, do not fall under 2B1.1, app. n.15 (i)-(v), none of these
factors are among those factors that § 5H1.10 or any other
provision prohibits as bases for departure (e.g. race, sex,
national origin, creed, religion, socioeconomic status). Indeed,
appellant does not assert any such prohibited factors were used.
The Sentencing Commission specifically noted that it "does not
intend to limit the kinds of factors, whether or not mentioned
anywhere else in the guidelines, that could constitute grounds for
departure in an unusual case." 2001 U.S.S.G. ch. 1, pt. A, intro.
comment. 4(b).
Even if this court were to find the trial judge's statements
in this case manifested some dissatisfaction with the guidelines,
the sentence should still be affirmed.3
3
We note that the McDowell court concluded, “Despite the court's error in departing
based on its own dissatisfaction with the available sentence, remand is not required to correct this
error. Remand is required unless we find that the district court would have imposed the same
sentence absent reliance on the improper factor. Here, the district court had the authority to make
the departure based only upon the likelihood of recidivism. Indeed, the court's written judgment
12
The court here explicitly stated that its upward departure was
based on “the factors stated in the government's Motion for an
Upward Departure, as well as the reasons stated by the government
today, and for the reasons I have stated.” In advocating its
Motion for Upward Departure at the sentencing hearing, the
government told the court, “And if the court looks at the facts
that are specific to this case, some of which I have already
mentioned, you will see what the impact is on the victim of this
particular crime which, I think, would require this Court to
consider an upward departure from the Sentencing Guidelines.” The
government later directed the court's attention to the “victim’s
impact statement which was furnished to the Court by the former
Mrs. Howard” in order to contrast the lifestyle she and her
children were forced to live with that of the defendant. These
facts on which the court relied in its upward departure go to the
harmfulness of defendant's conduct and are indicative of a
difference in the kind or degree of harm sustained in this
particular case such that it cannot be said that the trial court
abused its discretion.
In summary, it is certainly not shown that the trial court's
sentence was based on dissatisfaction with the guidelines and, even
if some unacted on, abstract dissatisfaction with the guidelines is
reflects this very conclusion. As such, although the court erred, we find the error to be harmless.”
McDowell, 109 F.3d at 219 (footnote omitted).
13
not an entirely implausible interpretation of a portion of the
court's statements, there were sufficient reasons expressly relied
upon by the court, both those not prohibited by the guidelines and
those specifically encouraged by them, to support the upward
departure. No abuse of the district court’s discretion or error of
law has been demonstrated.
Conclusion
Accordingly, the district court's judgment is
AFFIRMED.
14
United States v. Howard
Combined Opinion