PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 99-4456

LOUIS L. WILSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-97-694)

Argued: March 3, 2000

Decided: April 14, 2000

Before WIDENER and KING, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Widener and Senior Judge Michael joined.

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COUNSEL

ARGUED: William Fletcher Nettles, IV, Assistant Federal Public
Defender, Florence, South Carolina, for Appellant. Eric William
Ruschky, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee. ON BRIEF: J. Rene Josey, United States Attor-
ney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
OPINION

KING, Circuit Judge:

On July 8, 1998, appellant Louis L. Wilson was indicted in the Dis-
trict of South Carolina for violating the Deadbeat Parents Punishment
Act ("DPPA"), 18 U.S.C. § 228(a)(3) (Supp. 1999), for willfully fail-
ing to pay more than $10,000 in past due support obligations. Wilson
moved in the district court to dismiss the indictment, alleging that it
violated the Ex Post Facto Clause of the Constitution of the United
States.1 After the district court denied his motion to dismiss, Wilson
entered a conditional guilty plea to the charge in the indictment,
reserving his right, pursuant to Federal Rule of Criminal Procedure
11(a)(2), to appeal the adverse constitutional ruling. Finding no error,
we affirm.

I.

On January 18, 1984, Wilson and his wife entered into a separation
agreement whereby Wilson agreed to pay $800 per month as child
support. Wilson moved for temporary relief from this agreement, and
on November 13, 1984, the Family Court of Horry County, South
Carolina, reduced Wilson's child support obligation to $300 per
month. After Wilson failed, however, to appear at the final hearing on
his wife's petition for separate maintenance and support, the child
support obligation was reinstated to $800 per month. On July 24,
1985, the Family Court held Wilson in contempt for willful non-
compliance with its previous orders to pay child support, but the court
reduced his child support obligation to $500 per month, effective
August 1, 1985. Except for some payments made in 1985, Wilson
made no support payments pursuant to the July 24, 1985 order until
after the return of the indictment in this case. At the time he was sen-
tenced on June 15, 1999, Wilson owed $83,398.55 in child support
payments and $2,501.96 in court costs, for a total of $85,900.51.

On July 23, 1997, the United States Attorney for the District of
South Carolina filed a criminal information charging Wilson, a Mary-
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1 The Ex Post Facto Clause provides that: "No Bill of Attainder or ex
post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3.

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land resident, with a misdemeanor violation of the Child Support
Recovery Act of 1992 ("CSRA"), 18 U.S.C. § 228, amended by 18
U.S.C. § 228 (Supp. 1999). Based on the filing of the information, an
arrest warrant was issued for Wilson by the United States Magistrate
Judge, but it was never executed.2 The CSRA criminalized the willful
failure to pay a past due support obligation for a child residing in a
different state, if the obligation had remained unpaid for longer than
one year or was greater than $5,000. Under the CSRA, a first-time
offender could be punished by either a fine or imprisonment for not
more than six months, or both. Thus, a first offense violation of the
CSRA constituted a misdemeanor. See 18 U.S.C. § 3559(a)(7).

On June 24, 1998, the CSRA was amended by the DPPA, Pub. L.
No. 105-187, 112 Stat. 618 (1998) (codified at 18 U.S.C. § 228
(Supp. 1999)). The amended statute incorporated new felony provi-
sions, providing for a fine and up to two years' imprisonment, or
both, for the willful failure to pay a child support obligation with
respect to a child living in another state if the obligation had remained
unpaid for over two years or was greater than $10,000.3
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2 The information was subsequently dismissed on the motion of the
Government.
3 The amended statute provides in relevant part as follows:

         (a) OFFENSE. -- 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; shall be punished as provided in subsection (c).

         ....

         (c) PUNISHMENT. -- The punishment for an offense under
         this section is --

         ....

         (2) in the case of an offense under paragraph (2) or (3) of sub-
         section (a) . . . a fine under this title, imprisonment for not more
         than 2 years, or both.

18 U.S.C. § 228 (Supp. 1999).

                    3
Two weeks later, on July 8, 1998, Wilson was indicted by a grand
jury in the District of South Carolina for violating the felony provi-
sions of the DPPA, the amended § 228 of Title 18, for willfully fail-
ing to pay a support obligation. More specifically, the indictment
charged:

            From on or about June 24, 1998, and continuing to the
           date of this Superseding Indictment, in the District of South
           Carolina, Louis L. Wilson, who does not reside in South
           Carolina, willfully did fail to pay a support obligation with
           respect to a child who resides in South Carolina and which
           obligation has remained unpaid for a period longer than two
           years and is greater than $10,000.00;

           In violation of Title 18, United States Code, Section
           228(a)(3).

J.A. 8.4

Wilson then moved to dismiss the felony charge in the indictment
on constitutional grounds, alleging that because he had not accrued
past due support obligations greater than $10,000 after June 24, 1998,
the effective date of the DPPA, the Government's reliance on his total
past due obligations, including those accrued prior to June 24, 1998,
violated the Ex Post Facto Clause. It is undisputed that, as of June 24,
1998, Wilson had accumulated more than $10,000 in unpaid support
obligations. It is also undisputed that, between June 24, 1998 and July
8, 1998 (the date of the indictment), Wilson had not accrued more
than $10,000 in unpaid support obligations.
_________________________________________________________________
4 The Government subsequently decided to proceed based solely on the
$10,000 prong of § 228(a)(3), moving to strike as surplusage the allega-
tion in the indictment that Wilson's support "obligation has remained
unpaid for a period longer than two years." Although it never expressly
ruled on this motion, the district court's conviction and sentence of Wil-
son was based exclusively on the $10,000 prong of§ 228(a)(3). The
court's action was entirely proper, given that § 228(a)(3) is drawn in the
disjunctive, criminalizing the willful failure to pay a support obligation
that: (1) has remained unpaid for a period longer than two years; or (2)
is greater than $10,000.

                     4
On October 27, 1998, the district court denied Wilson's motion to
dismiss, concluding that the DPPA's application to Wilson did not
violate the Ex Post Facto Clause. Wilson has timely appealed.

II.

A.

We review de novo a district court's ruling on whether the Ex Post
Facto Clause bars a criminal prosecution. Plyler v. Moore, 129 F.3d
728, 734 (4th Cir. 1997). The Ex Post Facto Clause prohibits the
application of laws that "retroactively alter the definition of a crime
or [retroactively] increase the punishment for criminal acts." United
States v. O'Neal, 180 F.3d 115, 121 (4th Cir. 1999) (quoting Collins
v. Youngblood, 497 U.S. 37, 43 (1990)). Accordingly, a statute will
violate the Ex Post Facto Clause if it: (1) retroactively imposes a pun-
ishment for an act that was not punishable at the time the act was
committed, Weaver v. Graham, 450 U.S. 24, 28 (1981); or (2) retro-
actively imposes a greater punishment for an offense than was pre-
scribed by the law in existence at the time the offense was committed,
California Dep't of Corrections v. Morales, 514 U.S. 499, 507 n.3
(1995). Essentially, the guiding question in evaluating the constitu-
tionality of the DPPA, as applied to Wilson, is"whether the law
changes the legal consequences of acts completed before its effective
date." Weaver, 450 U.S. at 31.

B.

Wilson argues on appeal that his prosecution under the DPPA is
unconstitutional on two grounds. First, he maintains, albeit in a some-
what roundabout fashion, that the DPPA impermissibly criminalizes
his pre-DPPA conduct -- the accrual of past due support obligations
in a sum greater than $10,000. As such, Wilson argues that his indict-
ment violates the Ex Post Facto Clause because it necessarily relies
on conduct that occurred prior to the June 24, 1998 effective date of
the DPPA.

Second, Wilson asserts that, insofar as the Government relies on
his failure to make support payments prior to the DPPA's enactment,

                    5
the Ex Post Facto Clause is violated because the DPPA thereby
increases the punishment for acts committed by Wilson before its pas-
sage. Specifically, Wilson contends that the only way the Government
could demonstrate that he had willfully failed to pay a sum greater
than $10,000 in support obligations -- as alleged in the indictment --
was to rely on his conduct prior to June 24, 1998. According to Wil-
son, the Government's reliance on his pre-June 24, 1998 conduct
retroactively imposes greater punishment for the offense than was
imposed by the law as it existed when the offense was committed and
that his indictment thereby contravenes the Ex Post Facto Clause.

C.

We find Wilson's arguments unpersuasive and we are constrained
to reject them. Contrary to Wilson's suggestions, the conduct made
criminal by the DPPA is the willful failure to pay child support obli-
gations. Since the Government established that Wilson willfully failed
to pay after June 24, 1998, when the DPPA became effective, both of
his arguments must fail.

1.

In this regard, we find ourselves in agreement with the recent deci-
sion in United States v. Russell, 186 F.3d 883 (8th Cir. 1999), in
which the Eighth Circuit considered the identical arguments raised
here. In Russell, the defendant claimed that his prosecution under the
DPPA violated the Ex Post Facto Clause of the Constitution because
he had not accrued a past due support obligation greater than $10,000
after the June 24, 1998 enactment of the DPPA. The Eighth Circuit
rejected this argument, holding that the timing of the accrual is irrele-
vant for purposes of the Ex Post Facto Clause:

          [T]he DPPA's requirement that the defendant have in excess
          of $10,000 in past due support obligations identifies what
          kind of obligation the defendant must willfully fail to pay to
          be subject to prosecution; the statute does not criminalize
          the mere accrual of those past due support obligations.

Id. at 886.

                     6
In Russell, Judge Magill relied on his Circuit's earlier decision in
United States v. Woods, 696 F.2d 566 (8th Cir. 1982), where the
defendant had appealed a conviction for violating 18 U.S.C.
§ 1202(a)(1) (repealed 1986), which prohibited convicted felons from
possessing firearms that had affected or travelled in interstate com-
merce. Alleging that the Government could not prove that the firearm
found in his possession had crossed state lines after the statute
became effective, the defendant in Woods asserted that his conviction
violated the Ex Post Facto Clause. The Eighth Circuit rejected this
claim and upheld Woods's conviction, reasoning that the statute
criminalized the possession of a firearm by a felon, rather than its
interstate transport, concluding: "[W]e are not concerned with when
the revolver traveled in interstate commerce, but only [with] when the
appellant possessed a firearm which had traveled in interstate com-
merce." Id. at 572.

We find the Eighth Circuit's reasoning in both the Russell and
Woods decisions to be compelling. Like the interstate commerce
requirement at issue in Woods, the $10,000 requirement in § 228(a)(3)
refers simply to the amount of the obligation one must willfully fail
to pay in order to be subject to criminal sanction under the DPPA. As
we have noted, the essence of the criminal act here is Wilson's willful
failure to pay; the existence of past due obligations in a sum greater
than $10,000 merely brings him within the scope of the statute.
Therefore, the fact that Wilson's past due support obligations
exceeded $10,000 prior to the DPPA's enactment is irrelevant to his
argument -- the conduct prohibited by the DPPA is, as the indictment
properly alleged, Wilson's willful failure to pay. 5 Simply put, the rele-
_________________________________________________________________
5 Our recent decision in United States v. Mitchell, No. 99-4008, 2000
WL 309298 (4th Cir. Mar. 27, 2000), provides further support for our
conclusion today. In Mitchell, the defendant was convicted of violating
18 U.S.C. § 922(g)(9), possession of a firearm by a person convicted of
a domestic violence misdemeanor. The defendant argued that application
of the statute contravened the Ex Post Facto Clause, because the pur-
chase of the firearm found in his possession and his domestic violence
conviction each occurred prior to enactment of § 922(g)(9). We rejected
this argument, with Chief Judge Wilkinson correctly concluding:

         It is immaterial that Mitchell's firearm purchase and domestic
         violence conviction occurred prior to § 922(g)(9)'s enactment

                    7
vant fact is not when Wilson's debt in excess of $10,000 accrued, but
rather when the willful failure to pay occurred. Here, the charge was
clearly made that Wilson willfully failed to pay his past due support
obligation, in a sum greater than the statutory amount, after the effec-
tive date of the DPPA.6

Wilson's reliance on United States v. Mussari , 152 F.3d 1156 (9th
Cir. 1998), is misplaced. In Mussari, the Ninth Circuit held a prosecu-
tion under the CSRA to be unconstitutional on ex post facto grounds.
There, the indictment charged the defendant with failing to pay sup-
port obligations for a period prior to enactment of the statute, begin-
ning November 1, 1988, and ending January 11, 1995, despite the fact
that the CSRA did not go into effect until October 25, 1992. Pointing
out that some of the conduct charged in the indictment predated the
CSRA's enactment, the Ninth Circuit held that only those acts com-
mitted after the effective date of the CSRA could be considered in
determining whether the defendant violated § 228: "[A]cts of Mussari
before the statute was enacted cannot constitutionally be made a fed-
eral crime." Id. at 1158.

Conversely, Wilson was not charged with illegal conduct occurring
prior to enactment of the DPPA; rather, the indictment expressly
_________________________________________________________________
           because the conduct prohibited by § 922(g)(9) is the possession
           of a firearm. . . . As it is undisputed that Mitchell possessed the
           firearm after the enactment of § 922(g)(9), the law's application
           to Mitchell does not run afoul of the ex post facto prohibition.

Id. at *3
6 In analogous cases involving ex post facto challenges to the CSRA,
other courts have rejected arguments similar to those raised by Wilson.
In United States v. Black, 125 F.3d 454 (7th Cir. 1997), cited in Russell,
186 F.3d at 886, the defendant argued that the CSRA as applied to him
retroactively criminalized his pre-CSRA conduct because he had accrued
some of his past due support obligations prior to the CSRA's enactment.
The Seventh Circuit rejected the defendant's ex post facto challenge,
stating, "[The fact] [t]hat this debt arose before the passage of the CSRA
is irrelevant. What is relevant is that it remained unpaid." Id. at 466-67.
See also United States v. Crawford, 115 F.3d 1397, 1402-1403 (8th Cir.
1997); United States v. Rose, 153 F.3d 208, 211 n.1 (5th Cir. 1998).

                    8
alleged that Wilson willfully failed to pay his support obligation after
the DPPA became effective. Thus, Wilson's prosecution was not
based on allegations of criminal conduct predating enactment of the
DPPA, and Mussari is of no assistance to him.

2.

Wilson's second argument -- that the DPPA retroactively
increases the punishment for the willful failure to pay child support
obligations -- fails for the same reason. As emphasized above, the
criminal conduct at issue in this case occurred after the effective date
of the DPPA. Since Wilson was convicted and sentenced based on
post-enactment conduct, he was punished in accordance with the law
as it existed when the offense was committed. Thus, the DPPA does
not retroactively impose a greater punishment for the failure to pay
child support obligations than was prescribed at the time Wilson will-
fully failed to pay the support obligations alleged in the indictment.
His punishment for this offense therefore does not violate the Ex Post
Facto Clause. See Crawford, 115 F.3d at 1402-03 (8th Cir. 1997).

III.

In sum, because Wilson was convicted solely for acts occurring on
or after the June 24, 1998 effective date of the DPPA, his conviction
does not violate the Ex Post Facto Clause. We therefore affirm the
district court's denial of Wilson's motion to dismiss, and we affirm
his conviction and sentence.

AFFIRMED

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