United States v. Polen ( 1997 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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