                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT



                            No. 96-4684



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MARK D. POLEN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Northern Dis-
trict of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Chief District Judge. (CR-96-9)


Submitted:   July 8, 1997             Decided:   September 18, 1997


Before WIDENER, WILKINS, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William C. Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT,
L.C., Wheeling, West Virginia, for Appellant. William D. Wilmoth,
United States Attorney, Lisa Grimes Johnston, Assistant United
States Attorney, Davis S. Kris, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant Mark Polen was convicted pursuant to his guilty plea

of one count of willful failure to pay child support in violation

of 18 U.S.C. § 228 (1994).* On appeal, he challenges whether § 228
lies within Congress' constitutional power to regulate activities

affecting commerce. Finding no error, we affirm.

     Polen and his wife were divorced in 1984, and he was ordered

to pay child support. Polen failed to make the required child sup-

port payments, and by the time of sentencing in the present case he
owed approximately $17,000. He filed a motion to dismiss the crimi-
nal information on the ground that § 228 is unconstitutional. The

motion was denied, and Polen entered a conditional guilty plea,

reserving his right to appeal the constitutionality of the statute.

     This court recently held that § 228 does not exceed Congress'

power under the Commerce Clause, nor does it violate the Tenth

Amendment. See United States v. Johnson, 114 F.3d 476 (4th Cir.

1997). Accordingly, we affirm Polen's conviction and sentence. We

dispense with oral argument because the facts and legal contentions
are adequately presented in the material before the court and

argument would not aid the decisional process.




                                                           AFFIRMED




     *
         Also known as the "Child Support Recovery Act."

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