                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 22, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-30151
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus


GARY STEPHEN DENNIS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:04-CR-92-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Gary Stephen Dennis appeals his conviction and 24-month

sentence for violating 18 U.S.C. § 228(a)(3) of the Deadbeat

Parents Punishment Act.   Dennis first argues that the evidence

was insufficient to sustain his conviction.   Because Dennis did

not renew his FED. R. CRIM. P. 29 motion at the close of the

evidence, we consider only whether “the record is devoid of

evidence pointing to guilt or contains evidence on a key element

of the offense that is so tenuous that a conviction would be

     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-30151
                                 -2-

shocking.”    See United States v. McIntosh, 280 F.3d 479, 483 (5th

Cir. 2002).   The record is not devoid of evidence that Dennis

willfully failed to pay a past due child support obligation with

respect to a child who resided in another State and that the

support obligation was greater than $10,000 during the time

period alleged in the indictment.    See 28 U.S.C. § 228(a)(3).

     Dennis also argues that the trial court erred in admitting

into evidence testimony concerning a December 2002 conversation

between himself and his daughter.   Before the district court

overruled his hearsay objection to the Government’s question

regarding his ex-wife’s knowledge of the conversation, the

Government confirmed that her testimony was being offered to show

only that the conversation took place and not to show the content

of the conversation.   Dennis did not object to his ex-wife’s

testimony that, as a result of the conversation, she feared for

herself and their daughter.   His challenge to the admission of

that testimony is therefore reviewed for plain error.    See United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc).

     Dennis argues that his ex-wife’s testimony implied to the

jury that he threatened her and that her testimony was therefore

inadmissable pursuant to FED. R. EVID. 404(b).   His daughter’s

subsequent testimony, however, clarified the substance of the

December 2002 conversation for the jury, and the district court

did not abuse its discretion in allowing the daughter’s testimony
                           No. 05-30151
                                -3-

into evidence because Dennis’s statements to the daughter that

his ex-wife was barking up the wrong tree and messing with the

wrong person were probative of Dennis’s willful intent to not pay

child support.   See United States v. Polasek, 162 F.3d 878, 883

(5th Cir. 1998); FED. R. EVID. 403 and 404(b).   Accordingly, there

is no plain error.

     We review for plain error Dennis’s argument that the

district court incorrectly calculated the amount of restitution

owed under 28 U.S.C. § 228(d) because his child support

obligations had prescribed under LA. CIV. CODE art. 3501.1.    See

United States v. Miller, 406 F.3d 323, 327-28 (5th Cir. 2005).

There is no plain error because, at sentencing, Dennis neither

pleaded prescription nor challenged the restitution amount

recommended by the presentence report.    See LaSalle v. LaSalle,

856 So.2d 142, 144 (La. App. Ct. 2003); Broussard v. Crochet,

Broussard & Co., 477 So.2d 166, 175 (La. App. Ct. 1985); United

States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000).

     Dennis’s 24-month sentence resulted from the district

court’s upward departure from the recommended guidelines range of

15 to 21 months of imprisonment.   Dennis argues that his sentence

was unreasonable because, in upwardly departing, the district

court took into consideration the amount of past due child

support, which, Dennis argues, was miscalculated.    For the

reasons noted above, this argument is without merit.
                             No. 05-30151
                                  -4-

     Dennis also argues that his sentence “does not appear to fit

the requirements set forth by 18 U.S.C. § 3553(a)(2).”     The

district court aptly demonstrated at sentencing why Dennis’s

sentence of 24 months met the sentencing objectives of reflecting

the seriousness of the offense, promoting respect for the law,

providing just punishment, giving adequate deterrence for

criminal conduct, and protecting the public from further crimes

by the defendant.     See 18 U.S.C. § 3553(a)(2)(A)-(C).   Dennis’s

argument that his sentence of 24 months frustrates the objective

of the Deadbeat Parents Act to collect unpaid child support is

unconvincing as the plain language of the statute allows not only

for the collection of unpaid child support but also for the

imposition of a sentence of imprisonment.

     Finally, Dennis argues that his sentence was excessive in

violation of the Eighth and Fourteenth Amendments.    In comparison

to the life sentence imposed in Rummel v. Estelle, 445 U.S. 263

(1980), on a non-violent criminal pursuant to a recidivist

statute, the 24-month prison sentence imposed in Dennis’s case is

not “grossly disproportionate” to the offense of violating 28

U.S.C. § 228(a)(3).    See Smallwood v. Johnson, 73 F.3d 1343, 1347

(5th Cir. 1996).

     AFFIRMED.
