United States v. Brazell

United States Court of Appeals
Fifth Circuit
F I L E D
June 15, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 06-30102
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT WAYNE BRAZELL,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert Brazell appeals the application of a
two-point enhancement at sentencing. We re-
verse and remand.
I.
Brazell was indicted in the Southern Dis-
trict of Alabama in October 2004 for wilful
failure to pay state court-ordered child support
payments from April 2000 to April 2004 in vi-
olation of 18 U.S.C. § 228(a)(3). The case
was transferred by consent to the Western Dis-
trict of Louisiana. Brazell pleaded guilty, and
the parties entered into evidence a signed stip-
ulation in which Brazell admitted that in No-
vember 1983 he had been ordered to pay
monthly support for two children; that in
February 2000 he had been ordered to pay
$38,384.81 in arrearages due since November
1999; and that, as of the time of his plea, he
had not made a payment since February 2000.
He admitted that, as of July 2005, he would be

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$62,342.45 in arrears.
Brazell’s presentence investigation report
(“PSR”) suggested a base offense level of 6
pursuant to U.S.S.G. §§ 2J1.1 and 2B1.1(a)(2)
(which govern sentencing for violations of
§ 228(a)(3)). The PSR recommended adding
six levels because Brazell’s conduct resulted in
a loss of more than $30,000 and less than
$70,000. See U.S.S.G. § 2B1.1(b)(1)(D).
The PSR suggested subtracting two levels for
acceptance of responsibility, thus arriving at a
suggested offense level of 10.
The PSR calculated Brazell’s criminal his-
tory category at III. Brazell was assessed two
criminal history points for six convictions and
two points because he had committed the child
support offense while on probation for a 2005
state drug conviction.1
Brazell objected to the addition of two
points pursuant to § 4A1.1(d), asserting, inter
alia, that he did not violate § 228(a)(3) while
on probation. The district court scheduled a
sentencing hearing, but Brazellfailed to appear
and was arrested and detained pending a new
hearing. At the hearing, the court overruled
Brazell’s objection to the § 4A1.1(d) enhance-
ment, concluding that failure to pay child sup-
port was a continuing offense that extended
beyond the date of Brazell’s indictment and
continued during the time after he was placed
on probation in February 2005. The court
further ruled that Brazell was not entitled to a
two-point reduction in his offense level for
acceptance of responsibility, noting that he had
failed to appear at his sentencing hearing, had
violated the terms of his pretrial release by
testing positive for cocaine when he was rear-
rested, and had continued to fail to meet his
child support obligations.
Calculating Brazell’s offense level at 12 and
his criminal history category at III, the district
court identified Brazell’s advisory guideline
range to be 15-21 months’ imprisonment. The
court sentenced him to 21 months followed by
one year of supervised release, subject to pay-
ment of restitution.
Brazell appealed, then his counsel moved
for leave to withdraw from representation pur-
suant to Anders v. California, 386 U.S. 738
(1967). We denied the motion and ordered
counsel to brief “whether the district court
erred by adding two points to Brazell’s crimi-
nal history score pursuant to U.S.S.G.
§ 4A1.1(d) because Brazell’s offense was
committed while he was serving a sentence of
probation,” as well as any other issues counsel
deemed meritorious.
II.
Brazell argues that application of the en-
hancement is inappropriate, because his of-
fense may not legally be deemed to have con-
tinued after the date of his indictment. We re-
view a sentence for overall reasonableness.
See United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005). We review a district court’s
interpretation and application of the sentencing
guidelines de novo, see United States v. Reyes-
Mata, 305 F.3d 362, 366 (5th Cir. 2002), and
its factual findings for clear error, United
States v. Rodriguez-Mesa, 443 F.3d 397, 401
(5th Cir. 2006).
To determine whether application of
§ 4A1.1(d) was appropriate, wefirst must
evaluate whether violation of § 228(a)(3) con-
stitutes a continuing offense such that Brazell
could have continued to commit it after he was
1 See U.S.S.G. § 4A1.1(d) (specifying the ad-
dition of two criminal history points for an offense
committed while on probation).

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sentenced to probation for his drug offense.
We note that, though the issue whether failure
to pay child support constitutes a continuing
offense is one of first impression in this circuit,
our sister circuits that have considered it have
concluded that it is a continuing one. See
United States v. Russell, 186 F.3d 883, 886
n.4 (8th Cir. 1999); United States v. Muench,
153 F.3d 1298, 1304 (11th Cir. 1998).
We agree. The Supreme Court has defined
“continuing offense” to include “a continuous,
unlawful act or series of acts set on foot by a
single impulse and operated by an unintermit-
tent force, however long a time it may occu-
py.” United States v. Midstate Horticultural
Co., 306 U.S. 161, 166 (1939). Section 228
“criminalizes a defendant’s . . . willful failure
to pay a past due support obligation in excess
of $10,000; it does not criminalize the mere
accrual of this arrearage.” Russell, 186 F.3d
at 885. A defendant’s continual wilful failure
to satisfy his child support debt fits the de-
scription of Midstate and constitutes a contin-
uing offense.
Notwithstanding that wilful failure to pay
child support is a continuing offense, applica-
tion of § 4A1.1 was inappropriate. Although
we have not previously addressed application
of § 4A1.1(d) pursuant to a conviction for fail-
ure to pay support, we have discussed it in the
immigration context. In United States v. San-
tana-Castellano, 74 F.3d 593 (5th Cir. 1996),
we determined that § 4A1.1(d) appropriately
applies to an alien who illegally reentered the
United States and, before being apprehended
by immigration officials, committed a crime for
which he was sentenced to confinement in a
state prison. We reasoned that he had con-
tinued to remain unlawfully in the United
States during the course of his state sentence,
during which he was “found” by federal offi-
cials who prosecuted him for illegal reentry.
“A continuing offense, by its very nature, does
not terminate until the date of the indictment
or the voluntary termination of the illegal
activity.” Id. at 598.
The government argues that, by submitting
the factual stipulation, Brazell freely admitted
that his illegal activity continued during his
probation. He expressly affirmed the accuracy
of his factual stipulations during his guilty plea
colloquy. In that stipulation, submitted in June
2005, a little over four months after he had
been placed on probation for the state drug
offense, he stated that he had not made any
child support payments since February 2000
and that as of July 2005, eight days after the
stipulation was filed, he would be $62,342.45
in arrears. The government contends that,
because the PSR reflected these factual stipu-
lations (by calculating that as of September,
2005 Brazell would be $63,576.45 in arrears),
and because Brazell failed to object to any of
the facts contained in the PSR, the district
court correctly relied on those facts and ap-
plied the enhancement.
We disagree. We need not address Bra-
zell’s argument that the date of indictment is
the latest date on which a continuing offense
may deemed to have taken place (i.e., his con-
tention that the date of “voluntary termination
of illegal activity” applies only where that date
precedes the date of indictment): Instead, we
believe that the district court erred by ruling
that Brazell’s conduct during his probation
violated § 228.
That section criminalizes only the wilful
failure to pay child support obligations; it
confers a rebuttable presumption of ability to
pay only during the time period alleged in the
indictment. See § 228(b). Brazell’s admission
that he failed to make child support payments
during the period in which he was on proba-

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tion creates no presumption that his failure
was wilful, and without any proof of wilfulness
(i.e., ability to pay) during the time of his
probation, there is insufficient evidence to
sustain the district court’s conclusion that he
continued to violate the statute.2 Con-
sequently, that court erred by applying
§ 4A1.1(d), because there was insufficient
evidence to conclude that Brazell had violated
§ 228 while under a criminal sentence.
III.
In summary, the district court’s miscalcula-
tion of the guidelines resulted in a guidelines
sentence of 21 months, but the relevant guide-
line range without the § 4A1.1 enhancement
would have been 12-18 months. See U.S.S.G.
§ 5A, Sentencing Table. Accordingly, we
REVERSE and REMAND for resentencing.3
2 See United States v. Mussari, 152 F.3d 1156,
1158 (9th Cir. 1998) (holding that conviction for
wilful failure to pay child support during time peri-
od covering dates before and after enactment of
statute violated Ex Post Facto Clause, because evi-
dence of ability to pay pertained only to dates be-
fore statute’s enactment).
3 See United States v. Villegas, 404 F.3d 355,
360 (5th Cir. 2005).

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