United States v. Dennis , 168 F. App'x 587 ( 2006 )

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.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-92-1
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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this opinion should not be published and is not precedent except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
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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
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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
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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.