United States v. Rose

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-10477

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM LEE ROSE,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

August 26, 1998

Before DUHÉ, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

The defendant, William Lee Rose (“Rose”), who conditionally

pled guilty to a violation of the Child Support Recovery Act of

1992, 18 U.S.C. § 228 (“CSRA”), appeals the district court’s denial

of his motion to dismiss the charge against him. For the reasons

set forth below, we AFFIRM.

I.

In 1981, Rose was ordered to pay child support by a South

Carolina family court. He later moved to Texas where a Tarrant

County court found him delinquent in those payments and in 1989
ordered him to begin $100.00 weekly payments on the arrearage and

to continue his $100.00 weekly child support payments. Rose again

failed to comply, and, two years after South Carolina listed him as

one of the Ten Most Wanted Non-Supporting parents, he was charged

under the CSRA for past due support obligations dating from October

26, 1992, through the date of the indictment in November 1996.

After Rose pled guilty, the district court ordered him to pay

restitution in the amount of $65,463.66 to the office of the

Attorney General of Texas for the support of his minor child who

lives in South Carolina. The court also imposed a five-year

probation and a special assessment of $10.00.

Rose pled guilty only after the denial of his motion to

dismiss. In its denial, the district court rejected Rose’s

argument that the CSRA unconstitutionally exceeds Congress’s power.

It also ruled that neither the doctrine of abstention nor the

domestic relations exception to federal jurisdiction was

applicable. In addition to appealing the denial of his

constitutional claims, Rose attacks the district court’s

restitution order. He urges this Court to hold that the CSRA, in

seeking to enforce support obligations arising before its

enactment, violates the Ex Post Facto Clause of the United States

Constitution.

II.

We review constitutional challenges to a federal statute de

novo. U.S. v. Bailey, 115 F.3d 1222 (5th Cir. 1997).

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 A.

Rose has raised constitutional challenges to the Child Support

Recovery Act of 1992. He argues that Congress is without authority

to enact this legislation. Alternatively, he charges that the

statute violates the Tenth Amendment of the United States

Constitution and that the district court erred in not abstaining

from hearing the charge against him under the Younger or Burford

doctrines or the domestic relations exception to federal

jurisdiction. We hold that our opinion in U.S. v. Bailey, 115 F.3d

1222 (5th Cir. 1997), is dispositive of each these arguments and

affirm the district court’s denial.

B.

Rose next brings an ex post facto challenge to the restitution

order in this case. In general, the Ex Post Facto Clause prohibits

the retrospective application of a criminal law which prejudices a

defendant. See U.S. Const. art. I, § 9, cl. 3. In order for a

criminal law to be ex post facto, the law “must be retrospective,

that is, it must apply to events occurring before its enactment,

and it must disadvantage the offender affected by it.” Weaver v.

Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981) (citations and

internal footnotes omitted). Thus, a statute violates the Ex Post

Facto Clause if (1) it criminalizes conduct that was legal when

done; (2) inflicts greater punishment for an offense than was

inflicted by the law in existence at the time the offense was

committed; or (3) eliminates a defense that was available under the

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law at the time the offense was committed. Collins v. Youngblood,

497 U.S. 37, 42, 110 S. Ct. 2715, 2719 (1990).

In pertinent part, the CSRA provides that “[u]pon a conviction

under this section, the court shall order restitution under section

3663 in an amount equal to the past due support obligation as it

exists at the time of sentencing.” 18 U.S.C. § 228(c). As Rose

points out, given his history of non-payment, the restitution that

the district court was obliged to order under § 228(c) necessarily

encompassed amounts which had become past due before the effective

date of the CSRA. Rose argues that the inclusion of those amounts

in his restitution order violates the Ex Post Facto Clause. This

is an issue of first impression in this circuit.

Although we have not addressed the retroactivity of the CSRA,

we have previously held that retrospective restitution ordered

under the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §

3663, the vehicle through which the CSRA is enforced, raises ex

post facto concerns. See United States v. Corn, 836 F.2d 889, 895-

96 (5th Cir. 1988). Prior to the effective date of the VWPA,

January 1, 1983, a court could order restitution only as a

condition of probation. The VWPA, however, “expand[ed] current law

by authorizing an order of restitution independent of a condition

of probation, thereby permitting its use in conjunction with

imprisonment, fine, suspended sentence, or other sentence imposed

by the court.” Id. at 895 (quoting S. Rep. No. 532, 97th Cong., 2d

Sess. 32 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2538).

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Recognizing this, we found an ex post facto violation in Corn to

the extent that the restitution ordered by the district court

stemmed from events that occurred before the effective date of the

VWPA.

Although the VWPA is the enforcement mechanism for restitution

ordered under the CSRA, restitution ordered under the CSRA does not

raise the same ex post facto concerns as restitution ordered under

the VWPA. First, unlike the application of the VWPA in Corn,

restitution under the CSRA is not retrospective. In order to be

retrospective, the law must “change[] the legal consequences of

acts completed before its effective date.” Miller v. Florida, 482

U.S. 423, 430, 102 S. Ct. 2446, 2451 (1987). By its terms, the

CSRA imposes punishment only upon those who willfully fail to pay

past due child support obligations after October 25, 1992, the

effective date of the statute. Thus, the CSRA does not change the

legal consequences of Rose’s failure to pay past due child support

obligations before October 25, 1992. The inclusion of those past

due child support obligations which arose before the effective date

of the CSRA in the restitution order does not affect this

conclusion. One of the primary reasons for the Ex Post Facto

Clause was to assure that people were given “fair warning” of the

effect of legislative enactments. Weaver, 450 U.S. at 28-29, 101

S. Ct. at 964. At the time Rose committed the offense in this

case, the law had been on the books, and the consequences of his

failure to pay his past due child support obligations were quite

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clear. In short, “the CSRA gives fair warning that the district

court shall order restitution in the full amount due at the time of

sentencing.” United States v. Crawford, 115 F.3d 1397, 1403 (8th

Cir.), cert. denied, -- U.S. --, 118 S. Ct. 341 (1997); accord

United States v. Hampshire, 95 F.3d 999, 1005-06 (10th Cir. 1996).

Moreover, even assuming that the restitution ordered by the

CSRA is retrospective, Rose has not suffered any disadvantage

because the CSRA does not create an obligation where none existed

before. The CSRA, by its defining terms, exists to enforce an

earlier state court finding that a past due support obligation

exists. See 18 U.S.C. § 228(d)(1)(B). Since 1981, Rose has been

under a South Carolina court order to pay child support, an

obligation that he has repeatedly failed to meet. In 1989, a

Tarrant County court ordered Rose to make payments of $100 per week

for current child support and $100 per week for his past due

obligations. Rose defaulted on this order as well. Rose’s

defaults on these previous orders constitute unlawful conduct.

Thus, Rose would have to pay his past due child support whether or

not a federal court ordered him to do so in the form of restitution

because he was already obligated to do so by two state-court

decrees. The only possible “disadvantage” confronting Rose is that

he may actually find it more difficult to avoid his pre-existing

legal obligations. This is not a “disadvantage” proscribed by the

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Ex Post Facto Clause.1

III.

For the reasons set forth above, we AFFIRM.

1
Our holding that the restitution ordered under the CSRA does not raise ex
post facto concerns is in accord with each of the other circuit courts that have
addressed the issue. See United States v. Hampshire, 95 F.3d 999 (10th Cir.
1996); United States v. Crawford, 115 F.3d 1397 (8th Cir.), cert. denied, U.S.
, 118 S. Ct. 341 (1997); United States v. Black, 125 F.3d 454 (7th Cir. 1997).
Each of these cases held, in part, that CSRA restitution does not constitute
punishment within the meaning of the Ex Post Facto Clause; rather, these courts
held that restitution under the VWPA is predominantly compensatory in nature and
has as its purpose to ensure that the victims, to the greatest extent possible,
are made whole for their losses. See, e.g., Hampshire, 95 F.3d at 1006. Given
our holding in Corn, however, and our subsequent cases which hold that
restitution is, at least in part, penal in nature, see United States v. Mmahat,
106 F.3d 89, 92 (5th Cir.), cert. denied, -- U.S. --, 118 S. Ct. 136 (1997)
(holding that any form of restitution has both compensatory and penal aspects);
United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994) (“Restitution is a
criminal penalty and a component of the defendant’s sentence.”), we cannot adopt
this reasoning. Of course, we agree entirely with these courts’ subsequent
conclusion that even if restitution under the CSRA is punishment within the
meaning of the Ex Post Facto Clause, there is still no ex post facto violation.

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