F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 13 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-6384
JAMES ARTHUR MONTS, JR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 00-CR-110-R)
Teresa Black, Assistant United States Attorney (Robert G. McCampbell, United
States Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.
Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Defendant - Appellant.
Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.
KELLY, 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
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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
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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
(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
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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 (2000), and United States v. Morrison, 529 U.S. 598
(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. 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 (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-
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19. 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.2d 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, Hamphire 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
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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,
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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, 1998, when
his employment ended. Mr. Monts claims that because Virginia collected more
during this period than his total enforceable support obligation ($3,200), he had
no obligation that “remained unpaid” under § 228(a) at the time the indictment
was returned in August 2000.
Mr. Monts has cast his argument in terms that confuse the two interrelated
issues before us involving limitations periods. The first of these issues is whether
the indictment itself was presented within the applicable limitations period. The
second is whether the New York statute of limitations applies on the facts of this
case to negate a required element of the proof under § 228(a), specifically, that a
support obligation remained unpaid for at least one year at the time of the
indictment. Because resolution of the first issue essentially depends upon our
resolution of the second, we proceed directly to the second issue.
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New York’s six year statute of limitations has no bearing on this case given
the facts. We are not here concerned with any action or proceeding to enforce the
original New York support order in a New York court. Although Mr. Monts did
return to New York to obtain a certified copy of the support order upon learning
of Virginia’s intent to enforce, he never sought review in a New York court to
modify or vacate the order. In this case, enforcement of the original New York
support order was sought in Virginia.
After opening a case in March 1996, the Virginia DCSE sent, and Mr.
Monts signed for on March 21, 1996, a certified notice informing him that the
Virginia DCSE was now representing Ms. Cooper in the enforcement of the
support order and directing him to send all future support payments to the
Virginia DCSE. Because the support order was from New York, Ms. Cooper
resided in Oklahoma and Mr. Monts resided in Virginia, the Virginia DCSE
applied to this case its provisions of the Uniform Interstate Family Support Act
(UIFSA), Va. Code §§ 20-88.32 to -88.82, which Congress mandated all states
adopt by January 1, 1998. 42 U.S.C. § 666(f). Under UIFSA, the Virginia DCSE
applied its own Virginia law and procedures to the enforcement action.
Virginia’s UIFSA provisions provide for two enforcement methods for an
out-of-state support order: administrative enforcement under Article 7 and
enforcement after registration under Article 8 . Under Article 7, Va. Code § 20-
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88.65(A), a party seeking to enforce such a support order may send certain
required documents to a support enforcement agency, i.e., the Virginia DCSE.
Section 20-88.65(B) then allows the agency, without initially seeking to register
the order, to use any authorized administrative procedure to enforce the support
order, such as wage garnishment or the filing of a lien. It further provides that
“[i]f the obligor does not contest administrative enforcement, the order need not
be registered. If the obligor contests the validity or administrative enforcement of
the order, the support enforcement agency shall register the order pursuant to”
Article 8. Va. Code § 20-88.65(B). The obligor need only contest the
administrative enforcement to receive the more rigorous procedural protections
provided under Article 8.
Opting first to proceed administratively, the Virginia DCSE on April 3,
1996, sent Mr. Monts (1) a notice of proposed wage garnishment action which
informed him of his delinquency and the total arrearage and (2) an advanced
notice of lien. Trial Tr. at 70-72. The garnishment notice explained in detail how
to contest the administrative enforcement:
By law, you can contest this wage withholding only if you are not the
person cited or there is a mistake in the amount of support owed. If
you . . . contest this order, you must file a written request for an
appeal hearing within 10 days from the date of service of this notice.
Send the request to the Hearings Officer, 730 East Broad Street,
Richmond, VA 23219-1849. You will be notified of the time and
place of the hearing. Pursuant to the section of the Virginia Code
cited below, you will be given the opportunity to present your
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objection to this proposed withholding of earnings. [I]f you . . .
disagree with the Hearings Officer’s decision, the decision can be
appealed to a court of the Commonwealth within 10 days of receipt
of the Hearings Officer’s decision in accordance with the Section of
the Code of Virginia referenced below.
Addendum to Aplee. Br., Ex. 15A at 2. Furthermore, each notice provided him
the case officer’s name, phone number and location so he could seek further
information relating to the enforcement. Mr. Monts received the notices, because
he called and later appeared at the Virginia DCSE office to complain that he owed
no arrearage, yet he did not file a protest nor avail himself of any valid procedure
to contest the administrative enforcement. After the expiration of the ten-day
protest period, wage garnishment began.
Had Mr. Monts contested the administrative enforcement, under Virginia
law, not only would he have received the hearing and appeal opportunity, the
Virginia DCSE would also have been required to register the order and to proceed
under Article 8. Va. Code § 20-88.65(B). Article 8 itself would have also
guaranteed Mr. Monts a hearing upon request in which he could contest the
validity or enforcement of the order and in which he could have asserted any
defense or contested “the amount of any alleged arrearages.” Va. Code § 20-
88.71. Because Mr. Monts chose not to contest the administrative enforcement,
he has waived his right to do so and cannot now attack the Virginia enforcement
in the context of an appeal of his federal criminal prosecution. See, e.g., Micheli
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v. Director, OWCP, 846 F.2d 632, 635 (10th Cir. 1988). We therefore conclude
that New York’s six year statute of limitations has no bearing on this case given
the facts before this court.
We turn now to the first limitations issue noted above, namely, whether the
indictment itself was time-barred by the applicable statute of limitations. As did
the district court, we conclude that because 18 U.S.C. § 228 contains no specific
limitations period, the default federal limitations period of five years provided by
18 U.S.C. § 3282 applies to the issue of whether the indictment itself was time-
barred. Section 3282 provides that for non-capital offenses, “[e]xcept as
otherwise expressly provided by law, no person shall be prosecuted . . . unless the
indictment is found . . . within five years next after such offense shall have been
committed.” 18 U.S.C. § 3282. The offenses charged were the failure to pay a
support obligation which remained unpaid for longer than one year (Count 1) or
longer than two years (Count 2). Because we determined above that Mr. Monts’
obligation to pay support was a viable obligation as determined by the
Commonwealth of Virginia in 1996, we conclude that the offenses charged were
committed within five years of the indictment, and as such, § 3282 was no bar to
the prosecution.
III. Sufficiency of Evidence
At the close of the government’s case, Mr. Monts moved for judgment of
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acquittal under Fed. R. Crim. P. 29(a) on the basis that the evidence was
insufficient to sustain a conviction relying upon his limitations argument. We
review the record de novo when reviewing both the sufficiency of the evidence to
support a conviction and the denial of a motion for judgment of acquittal. United
States v. Vallo, 238 F.3d 1242, 1246 (10th Cir. 2001). The jury's verdict will be
upheld if, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Conviction on both counts required the government to prove (1) willful
failure to pay, (2) a past due support obligation with respect to a child, (3) who
resides in another State. 18 U.S.C. §§ 228(a)(1), (a)(3). Conviction on Count 1
also required proof that the support obligation either remained unpaid for more
than one year or was greater than $5,000. 18 U.S.C. § 228(a)(1). Conviction on
Count 2 also required proof that the support obligation either remained unpaid for
more than two years or was greater than $10,000. 18 U.S.C. § 228(a)(3). 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).
The evidence was clearly sufficient. Mr. Monts was ordered by a New
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York court in 1975 to pay child support. Trial Tr. at 19-24. He was aware of the
support order and failed to pay. Trial Tr. at 75. He was continually in arrears on
his obligation since 1976, which was the year he admitted he last made a
voluntary payment. Trial Tr. at 24, 32, 43, 71, 84, 129. During the period of the
offenses charged, Mr. Monts had ample funds from employment or otherwise
from which he could have attempted to satisfy his obligation. Trial Tr. at 105-
113. He never resided in Oklahoma, but his child did from mid-1982 until trial.
Trial Tr. at 13, 30-31, 102, 117. Finally, at all times charged in each count, Mr.
Monts owed over $40,000 in arrears exclusive of interest representing unpaid
amounts accruing since 1975. Trial Tr. at 23, 85-86.
IV. Application of U.S.S.G. § 2B1.1(b)(1) and (b)(4)
When reviewing a district court’s sentencing determination, we must
“accept the findings of fact of the district court unless they are clearly erroneous
and [must] give due deference to the district court's application of the guidelines
to the facts.” 18 U.S.C. § 3742(e). A district court’s determination of what may
be properly considered in assessing “loss” under the Guidelines is reviewed de
novo. United States v. Williams, 50 F.3d 863, 864 (10th Cir. 1995).
Relying once again on the New York limitations argument, Mr. Monts
argues first that the district court erred by calculating his sentence based on a
“loss” figure which included unpaid amounts of child support which he maintains
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are time-barred. The district court rejected this argument, as do we for the
reasons set out above. The government presented sufficient evidence at trial to
prove that Mr. Monts owed more than $40,000 in unpaid child support, thus
establishing the amount of “loss” under U.S.S.G. § 2B1.1 and supporting a seven-
level upward adjustment in addition to the base offense level of four. See
U.S.S.G. § 2J1.1 (2000) (most analogous guideline is § 2B1.1). The district court
relied on the Virginia DCSE calculation in finding that Mr. Monts owed
$66,415.56 in unpaid child support.
Mr. Monts also argues that the district court erred by imposing a two-level
enhancement for “more than minimal planning” pursuant to U.S.S.G. §
2B1.1(b)(4). He maintains that the crime he committed was failure to pay in its
simplest form, and, because no court process was initiated until after his child
reached age twenty-one, he asserts that his conduct should properly be viewed as
simply not cooperating with the debt collection process.
U.S.S.G. § 2B1.1(b)(4)(A) directs the district court to increase the base
offense level by two levels if “the offense involved more than minimal planning.”
Application Note One under § 2B1.1 directs the reader to §1B1.1 for the
definition of “more than minimal planning.” U.S.S.G. § 2B1.1 n.1. U.S.S.G. §
1B1.1 states that one situation warranting the adjustment is where there is more
planning than is typical for committing the offense in a simple form. U.S.S.G. §
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1B1.1 n.1(f); see, e.g., United States v. Archuletta, 231 F.3d 682, 684 (10th Cir.
2000).
After reviewing the PSR and hearing the government’s comprehensive
review of Mr. Monts’ considerable efforts to avoid paying child support, Sent. Tr.
at 3-7, the district court concluded that Mr. Monts’s conduct over the years
exhibited more planning than is typical for committing the offense in its simple
form and ruled that the adjustment was warranted:
It just strikes me the defendant went to great lengths to – not only did
he not pay child support, he went to great lengths to avoid paying
child support by his various efforts of moving, and not filing tax
returns, and generally being obstructive with the authorities on this.
So it just strikes me that it’s not a simple – just simply a failure to
pay, it’s much more than that.
Sent. Tr. at 7. The district court’s imposition of the adjustment for more than
minimal planning is supported by adequate evidence. See United States v. Copus,
110 F.3d 1529, 1537 (10th Cir. 1997).
V. Validity of the Restitution Order
Mr. Monts finally argues that the district court erred by imposing a
restitution order upon him that included time-barred amounts of past-due child
support. The district court ordered restitution from Mr. Monts in the amount of
$66,415.56, the amount determined by the Virginia DCSE and accepted by the
district court as the total unpaid obligation at the time of sentencing.
Congress elected not merely to permit the trial court to order restitution in
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these cases, it affirmatively mandated restitution: “Upon a conviction under this
section, 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). The only issue for the district court to determine is the amount
of the total unpaid support obligation for which it must order restitution.
We review the legality of a restitution order de novo. We accept the factual
findings underlying a restitution order unless they are clearly erroneous, and we
review the amount of restitution for an abuse of discretion. United States v.
Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999). Applying these standards to the
facts before us here, we conclude that the district court did not err in relying on
the amount determined by the Virginia DCSE as the total unpaid support
obligation.
AFFIRMED.
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