                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 08a0666n.06

                                  Filed: November 3, 2008

                                         No. 08-1894

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                 ON APPEAL FROM THE UNITED
                                                   STATES DISTRICT COURT FOR THE
KEITH DUNN,                                        EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                             /



BEFORE:         BATCHELDER, CLAY, and SUTTON, Circuit Judges.



       CLAY, Circuit Judge. Defendant Keith Dunn appeals the district court’s judgment

imposing a five month sentence of imprisonment followed by five months in a halfway house for

failure to pay court-ordered child support in violation of 18 U.S.C. § 228(a)(3). Dunn entered a

guilty plea to the indictment, but argues that the district court miscalculated the advisory

Sentencing Guidelines range by improperly including interest in the amount of loss. For the

reasons that follow, we REVERSE the judgment of the district court and REMAND the case for

resentencing.

                                       BACKGROUND
                                           No. 08-1894

       On September 19, 2007, Defendant Keith Dunn was indicted in the United States District

Court for the Northern District of Texas for failing to pay child support in violation of 18 U.S.C.

§ 228(a)(3). On November 29, 2007, Dunn consented to transfer his case to the Eastern District

of Michigan for a guilty plea and sentence, and on March 11, 2008, he pleaded guilty to the

indictment. On June 24, 2008, Dunn was sentenced to five months in prison followed by five

months in a halfway house. Dunn filed a timely notice of appeal on July 8, 2008.

       The facts of the underlying criminal conviction are not in dispute. The parties agree that

between July 2004 and September 2007, Dunn failed to pay child support payments as required

by a Texas court order. He missed payments totaling $11,514.00, and is responsible for paying

$77,804.50 in restitution, which includes interest on unpaid child support.

       At sentencing, Dunn argued that under the advisory Sentencing Guidelines

(“Guidelines”), the loss amount calculation for sentencing should exclude interest, which would

result in a loss of    $11,514.00 and a Guidelines range of 0-6 months.           See U.S.S.G. §

2B1.1(b)(1). The district court disagreed and included interest in the calculation, determining

that the loss was $77,804.50. Based on this loss amount, the court calculated a Guidelines range

of 10-16 months and sentenced Dunn to five months imprisonment followed by five months in a

halfway house.

                                         DISCUSSION

       A.      Standard of Review

       To determine whether the district court has imposed a sentence that is procedurally

unreasonable, this Court must review the calculation of the Guidelines range. See Gall v. United



                                                -2-
                                           No. 08-1894

States, 128 S. Ct. 586, 597 (2007). We review the district court’s legal conclusions de novo.

United States v. Brown, 151 F.3d 476, 482 (6th Cir. 1998).

       B.      Analysis

       Dunn was convicted of failure to pay court-ordered child support in violation of 18

U.S.C. § 228(a)(3).     The applicable Guideline, U.S.S.G. § 2J1.1, states that for “offenses

involving the willful failure to pay court-ordered child support, (violations of 18 U.S.C. § 228),

the most analogous guideline is § 2B1.1.”         U.S.S.G § 2J1.1, App. Note 2.1          In turn, the

Application Notes to § 2B1.1 expressly state that “[l]oss shall not include the following: (i)

Interest of any kind, finance charges, late fees, penalties, amounts based on an agreed-upon

return or rate of return, or other similar costs.” U.S.S.G. § 2B1.1, App. Note 3(D)(i).

       To be sure, the command to exclude interest is located in the commentary accompanying

§ 2B1.1 and not in the text of the guideline itself. But the Supreme Court has held, and this

Court has reaffirmed in pre- and post-Booker case law, that courts should treat guideline manual

commentary as authoritative “unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States,

508 U.S. 36, 38 (1993); see United States v. Chriswell, 401 F.3d 459, 463 (6th Cir. 2005);

United States v. Boumelhem, 339 F.3d 414, 427 n.13 (6th Cir. 2003).




       1
        The applicable Guideline, § 2J1.1, makes no sentence recommendation for child support
convictions, instead referring the court to § 2X5.1 (“Other Felony Offenses”) for guidance. Section
2X5.1 instructs the sentencing judge to apply “the most analogous offense guideline,” and the
Commentary to Guidelines Section 2J1.1 states that for “offenses involving the willful failure to pay
court-ordered child support (violations of 18 U.S.C. § 228), the most analogous guideline is § 2B1.1
(Theft Destruction, and Fraud).” U.S.S.G. § 2J1.1, App. Note 2.

                                                -3-
                                            No. 08-1894

       Dunn argued that the aforementioned Application Notes directed the district court to

exclude interest from the loss calculation in sentencing and that the loss should be $11,514.00,

resulting in a Guidelines range of 0-6 months. The district court disagreed, and included interest

in the loss, calculating a loss of $77,804.50 and a Guidelines range of 10-16 months.

       The government contends that the district court properly included interest in the loss

calculation, notwithstanding the aforementioned Application Notes, because pursuant to the

Deadbeat Parents Punishment Act, a delinquent parent is responsible for restitution “in the full

amount of each victim’s losses,” including interest. 18 U.S.C. § 228(d); 18 U.S.C. § 3664. This

argument appears to confuse the issue, however, because Dunn is contesting the district court’s

loss calculation, and not the amount of restitution that is due.

       The government also argues that loss for sentencing purposes is equal to the amount of

restitution, citing United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002). In Molak, the First

Circuit held that the district court did not err in refusing to back interest and costs out of the

amount of loss because interest is “part and parcel” of what is needed to put the aggrieved parent

and child in the financial position that they would have enjoyed had the defendant honored his

obligations. Id. at 51. However, as Dunn properly notes, the Molak court does not address the

amendments to Application Note 3(D)(i) of U.S.S.G. § 2B1.1, which took effect only two

months before the case was decided. These amendments specifically state that interest shall not

be included in loss calculations.

       Finally, the government argues that excluding interest from loss in sentencing

calculations would grant Dunn a windfall. However, Dunn does not contest that he owes



                                                 -4-
                                           No. 08-1894

$77,804.50 in restitution. He will be responsible for paying this full balance, regardless of the

court’s determination of loss for sentencing calculations.

       In sum, the government does not offer a persuasive reason for failing to apply the

Application Note to U.S.S.G. § 2B1.1, even though that note clearly indicates that interest should

be excluded from loss calculations in sentencing. Consequently, we conclude that the district

court improperly calculated Dunn’s advisory Guidelines range and imposed a sentence that is

procedurally unreasonable.     See Gall, 128 S. Ct. at 597 (2007) (advising that improper

calculation of advisory Guidelines range constitutes procedural error).

                                         CONCLUSION

       For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND the case for resentencing consistent with this opinion.




                                                -5-
