United States Court of Appeals
Fifth Circuit
F I L E D
In the June 15, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-30102
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT WAYNE BRAZELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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Before SMITH, BENAVIDES, and DENNIS, payments from April 2000 to April 2004 in vi-
Circuit Judges. olation of 18 U.S.C. § 228(a)(3). The case
was transferred by consent to the Western Dis-
JERRY E. SMITH, Circuit Judge: trict of Louisiana. Brazell pleaded guilty, and
the parties entered into evidence a signed stip-
Robert Brazell appeals the application of a ulation in which Brazell admitted that in No-
two-point enhancement at sentencing. We re- vember 1983 he had been ordered to pay
verse and remand. monthly support for two children; that in
February 2000 he had been ordered to pay
I. $38,384.81 in arrearages due since November
Brazell was indicted in the Southern Dis- 1999; and that, as of the time of his plea, he
trict of Alabama in October 2004 for wilful had not made a payment since February 2000.
failure to pay state court-ordered child support He admitted that, as of July 2005, he would be
$62,342.45 in arrears. testing positive for cocaine when he was rear-
rested, and had continued to fail to meet his
Brazell’s presentence investigation report child support obligations.
(“PSR”) suggested a base offense level of 6
pursuant to U.S.S.G. §§ 2J1.1 and 2B1.1(a)(2) Calculating Brazell’s offense level at 12 and
(which govern sentencing for violations of his criminal history category at III, the district
§ 228(a)(3)). The PSR recommended adding court identified Brazell’s advisory guideline
six levels because Brazell’s conduct resulted in range to be 15-21 months’ imprisonment. The
a loss of more than $30,000 and less than court sentenced him to 21 months followed by
$70,000. See U.S.S.G. § 2B1.1(b)(1)(D). one year of supervised release, subject to pay-
The PSR suggested subtracting two levels for ment of restitution.
acceptance of responsibility, thus arriving at a
suggested offense level of 10. Brazell appealed, then his counsel moved
for leave to withdraw from representation pur-
The PSR calculated Brazell’s criminal his- suant to Anders v. California, 386 U.S. 738
tory category at III. Brazell was assessed two (1967). We denied the motion and ordered
criminal history points for six convictions and counsel to brief “whether the district court
two points because he had committed the child erred by adding two points to Brazell’s crimi-
support offense while on probation for a 2005 nal history score pursuant to U.S.S.G.
state drug conviction.1 § 4A1.1(d) because Brazell’s offense was
committed while he was serving a sentence of
Brazell objected to the addition of two probation,” as well as any other issues counsel
points pursuant to § 4A1.1(d), asserting, inter deemed meritorious.
alia, that he did not violate § 228(a)(3) while
on probation. The district court scheduled a II.
sentencing hearing, but Brazell failed to appear Brazell argues that application of the en-
and was arrested and detained pending a new hancement is inappropriate, because his of-
hearing. At the hearing, the court overruled fense may not legally be deemed to have con-
Brazell’s objection to the § 4A1.1(d) enhance- tinued after the date of his indictment. We re-
ment, concluding that failure to pay child sup- view a sentence for overall reasonableness.
port was a continuing offense that extended See United States v. Mares, 402 F.3d 511, 520
beyond the date of Brazell’s indictment and (5th Cir. 2005). We review a district court’s
continued during the time after he was placed interpretation and application of the sentencing
on probation in February 2005. The court guidelines de novo, see United States v. Reyes-
further ruled that Brazell was not entitled to a Mata, 305 F.3d 362, 366 (5th Cir. 2002), and
two-point reduction in his offense level for its factual findings for clear error, United
acceptance of responsibility, noting that he had States v. Rodriguez-Mesa, 443 F.3d 397, 401
failed to appear at his sentencing hearing, had (5th Cir. 2006).
violated the terms of his pretrial release by
To determine whether application of
§ 4A1.1(d) was appropriate, wefirst must
1 evaluate whether violation of § 228(a)(3) con-
See U.S.S.G. § 4A1.1(d) (specifying the ad-
dition of two criminal history points for an offense
stitutes a continuing offense such that Brazell
committed while on probation). could have continued to commit it after he was
2
sentenced to probation for his drug offense. “A continuing offense, by its very nature, does
We note that, though the issue whether failure not terminate until the date of the indictment
to pay child support constitutes a continuing or the voluntary termination of the illegal
offense is one of first impression in this circuit, activity.” Id. at 598.
our sister circuits that have considered it have
concluded that it is a continuing one. See The government argues that, by submitting
United States v. Russell, 186 F.3d 883, 886 the factual stipulation, Brazell freely admitted
n.4 (8th Cir. 1999); United States v. Muench, that his illegal activity continued during his
153 F.3d 1298, 1304 (11th Cir. 1998). probation. He expressly affirmed the accuracy
of his factual stipulations during his guilty plea
We agree. The Supreme Court has defined colloquy. In that stipulation, submitted in June
“continuing offense” to include “a continuous, 2005, a little over four months after he had
unlawful act or series of acts set on foot by a been placed on probation for the state drug
single impulse and operated by an unintermit- offense, he stated that he had not made any
tent force, however long a time it may occu- child support payments since February 2000
py.” United States v. Midstate Horticultural and that as of July 2005, eight days after the
Co., 306 U.S. 161, 166 (1939). Section 228 stipulation was filed, he would be $62,342.45
“criminalizes a defendant’s . . . willful failure in arrears. The government contends that,
to pay a past due support obligation in excess because the PSR reflected these factual stipu-
of $10,000; it does not criminalize the mere lations (by calculating that as of September,
accrual of this arrearage.” Russell, 186 F.3d 2005 Brazell would be $63,576.45 in arrears),
at 885. A defendant’s continual wilful failure and because Brazell failed to object to any of
to satisfy his child support debt fits the de- the facts contained in the PSR, the district
scription of Midstate and constitutes a contin- court correctly relied on those facts and ap-
uing offense. plied the enhancement.
Notwithstanding that wilful failure to pay We disagree. We need not address Bra-
child support is a continuing offense, applica- zell’s argument that the date of indictment is
tion of § 4A1.1 was inappropriate. Although the latest date on which a continuing offense
we have not previously addressed application may deemed to have taken place (i.e., his con-
of § 4A1.1(d) pursuant to a conviction for fail- tention that the date of “voluntary termination
ure to pay support, we have discussed it in the of illegal activity” applies only where that date
immigration context. In United States v. San- precedes the date of indictment): Instead, we
tana-Castellano, 74 F.3d 593 (5th Cir. 1996), believe that the district court erred by ruling
we determined that § 4A1.1(d) appropriately that Brazell’s conduct during his probation
applies to an alien who illegally reentered the violated § 228.
United States and, before being apprehended
by immigration officials, committed a crime for That section criminalizes only the wilful
which he was sentenced to confinement in a failure to pay child support obligations; it
state prison. We reasoned that he had con- confers a rebuttable presumption of ability to
tinued to remain unlawfully in the United pay only during the time period alleged in the
States during the course of his state sentence, indictment. See § 228(b). Brazell’s admission
during which he was “found” by federal offi- that he failed to make child support payments
cials who prosecuted him for illegal reentry. during the period in which he was on proba-
3
tion creates no presumption that his failure
was wilful, and without any proof of wilfulness
(i.e., ability to pay) during the time of his
probation, there is insufficient evidence to
sustain the district court’s conclusion that he
continued to violate the statute.2 Con-
sequently, that court erred by applying
§ 4A1.1(d), because there was insufficient
evidence to conclude that Brazell had violated
§ 228 while under a criminal sentence.
III.
In summary, the district court’s miscalcula-
tion of the guidelines resulted in a guidelines
sentence of 21 months, but the relevant guide-
line range without the § 4A1.1 enhancement
would have been 12-18 months. See U.S.S.G.
§ 5A, Sentencing Table. Accordingly, we
REVERSE and REMAND for resentencing.3
2
See United States v. Mussari, 152 F.3d 1156,
1158 (9th Cir. 1998) (holding that conviction for
wilful failure to pay child support during time peri-
od covering dates before and after enactment of
statute violated Ex Post Facto Clause, because evi-
dence of ability to pay pertained only to dates be-
fore statute’s enactment).
3
See United States v. Villegas, 404 F.3d 355,
360 (5th Cir. 2005).
4