                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                           June 21, 2005

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                 No. 04-61059
                               Summary Calendar



                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

                              RICHARD LEE CLONCE,
                          also known as Rick Clonce,

                                                      Defendant-Appellant.



            Appeal from the United States District Court
              for the Southern District of Mississippi
                        USDC No. 4:03-CR-14-1


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Richard Lee Clonce appeals his conviction and sentence

for willful failure to pay child support for Ashley, the child he

fathered   with     his    ex-wife,    Nancy   Marsack.       See    18    U.S.C.

§ 228(a)(3).       His challenge to federal jurisdiction is without

merit. There is no authority to support his argument that the term

“residence” as used in 18 U.S.C. § 228(a)(3) has the same meaning

as “domicile.”      In fact, the only courts to have considered the



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
issue have found to the contrary.    See United States v. Namey, 364

F.3d 843 (6th Cir.), cert. denied, 125 S. Ct. 302 (2004); United

States v. Venturella, 391 F.3d 120, 131 (2d Cir. 2004).   Moreover,

the clear language of the statute reveals that the issue was where

Ashley resided and not where her parents claimed to be domiciled.

18 U.S.C. § 228(a)(3).    Clonce’s inquiry into Marsack’s domicile

was irrelevant and was properly excluded.    FED. R. EVID. 401, 402.

           Clonce argues that in light of United States v. Booker,

125 S. Ct. 738 (2005), this case should be remanded for resen-

tencing.   The Government concedes this issue.   Because there does

not appear to be anything in the record “that would prove beyond a

reasonable doubt that the district court would not have sentenced

[Clonce] differently had it acted under an advisory Guidelines

regime,” Clonce is entitled to a remand for resentencing.    United

States v. Akpan, 2005 WL 852416, *11 (5th Cir. 2005).

           Clonce’s challenge to the constitutionality of 18 U.S.C.

§ 228 is without merit.    See United States v. Bailey, 115 F.3d

1222, 1226-30, 1232-33 (5th Cir. 1997).

           VACATED AND REMANDED FOR RESENTENCING.




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