                        IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                              No. 02-30048




        UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,
                          versus



        RONALD GEORGE HOWARD,
                                                             Defendant-Appellant.




                  Appeal from the United States District Court
                      for the Eastern District of Louisiana


                                           October 31, 2002

Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI,* Judge.1

PER CURIAM:**

        Ronald George Howard appeals his conviction and sentence for
violation of 18 U.S.C. § 228(a)(3), a subsection of the Child
Support Recovery Act (CSRA).                        We affirm.
                                 Facts and Proceedings Below



         *The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.

        **
         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 R.47.5 the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
      On September, 18, 1997, the Juvenile and Domestic Relations

District Court of Prince William County in the State of Virginia

ordered Howard to pay child support to Patricia Howard for the

benefit of his three minor children, Jennifer Marie, Christopher,

and Brandon Thomas, over whom Ms. Howard had, and continued to

have, custody.    The order required $300 per month in support per

child until each child reached 18 years old, except that support

for   Jennifer   Marie   continued   for   six   months   after    her   18th

birthday.   Howard later moved to Arizona and Florida.            Ms. Howard

and the children moved to Louisiana around the time the couple

separated and resided there between January 1, 1999 and April 14,

2001, the period charged in the indictment.        As of the trial date,

the youngest child, Brandon Thomas, was 15, and the $300 per month

obligation continued to accrue.

      On May 25, 2001, Howard was indicted for violation of 18

U.S.C. § 228(a)(3), a subsection of the Child Support Recovery

Act (CSRA), which provides criminal penalties for

      “Any person who -

      3) willfully fails to pay a support obligation with
      respect to a child who resides in another State, if such
      obligation has remained unpaid for a period longer than
      2 years, or is greater than $10,000.”

      Howard sought dismissal of the indictment, alleging that the

CSRA exceeds the federal commerce power. The district court denied

that motion (and a similar one made post-verdict).

      The government introduced evidence at trial showing that


                                     2
Howard was a computer systems analyst and programmer, who earned

more than $58,000 in 1999 and $63,000 in 2000, as well as evidence

that Howard repeatedly promised to pay the support he owed, but

later failed to do so.       As of the date of sentencing, Howard owed

$84,535.51 in child support.      During the two years and four months

charged in the indictment, Howard made no child support payments.

The jury returned a guilty verdict.

      The district judge sentenced Howard to the statutory maximum

of   twenty-four   months’    imprisonment.   Because   there   are   not

sentencing guidelines specifically applicable to the CSRA, the

court applied the most analogous sentencing guideline, § 2B1.1

(Larceny, Embezzlement, and Other Forms of Theft).       The range set

forth in this guideline is ten to sixteen months.       The government

moved for an upward departure in accordance with Application Note

15 to § 2B1.1.     The court imposed an eight month upward departure

in addition to the sixteen months authorized by the guideline for

a total sentence of twenty-four months.

      Howard filed a timely notice of appeal on December 28, 2001

challenging the constitutionality of the CSRA under the Commerce

Clause and the permissibility of the court's upward sentencing

departure.

                                Discussion

I.   Commerce Clause

      We rejected a similar challenge to CSRA in United States v.



                                     3
Bailey, 115 F.3d 1222 (5th Cir. 1997), and Bailey binds us absent

an intervening contrary decision by the en banc court or the

Supreme Court.      Brown v. United States, 890 F.2d 1329 (5th Cir.

1989).       Howard urges us to reexamine Bailey in light of United

States v. Morrison, 120 S.Ct. 1740 (2002), and Jones v. United

States, 120 S.Ct. 1904 (2000).           We decline the invitation.          Bailey

expressly sustained the CSRA under the first and second of the

categories of commerce clause power outlined in United States v.

Lopez, 115 S.Ct. 1624 (1995), and Bailey expressly declined to

address the third Lopez category of commerce clause power.                   Bailey

at 1226.      Morrison, by contrast, addressed only the third Lopez

category.       Morrison,   120       S.Ct.   at   1749.   Jones    is   likewise

unavailing; it was decided as a matter of statutory construction,

and it appears that the statute under consideration would have

called for analysis under Lopez category three, not categories one

or    two.     Accordingly,      we   reject    appellant’s     commerce     clause

challenge to the CSRA on the basis of Bailey, which we are not free

to reconsider.

II.    Upward Sentencing Departure

       The    defendant   also    appeals      the   district   court's      upward

sentencing departure. There is no sentencing guideline specific to

the CSRA, but the commentary to the Contempt guideline,                  §   2J1.1,




                                          4
mandates application of the most analogous guideline under § 2X51.1

       It    is    not    disputed        that    §   2B1.1      was    properly         applied,

resulting in a base level of 4, with 8 points added because the

support      Howard      failed      to    pay    exceeded       $70,000.           It   is   also

uncontested that with an offense level of 12 and a criminal history

category of I, the defendant's guideline range was 10-16 months.

The district court, however, departed upward an additional eight

months for a total sentence of twenty-four months.

       A    sentencing        court       generally      is    required        to    apply     the

Guidelines Manual in effect at the time of sentencing. 18 U.S.C. §

3553(a)(4). However, where application of the guidelines in effect

at sentencing would result in a more severe sentence than the

version in effect at the time of the commission of the offense, the

Ex Post Facto Clause of Article I of the Constitution requires use

of the earlier version of the guidelines. United States v. Rivers,

50 F.3d 1126, 1129 (2d Cir. 1995); United States v. Rodriguez, 989

F.2d 583, 587 (2d Cir. 1993).                    The last date of the offense, as

alleged in the indictment, is the controlling date for ex post

facto purposes. U.S.S.G. § 1B1.11, comment. (n.2); United States v.

Gigante, 39 F.3d 42, 50 (2d Cir. 1994).



       1
         “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 (Larceny, Embezzlement, and Other
Forms of Theft). The amount of the loss is the amount of child support that the defendant
willfully failed to pay. Note: This guideline applies to.....any offense under 18 U.S.C. § 228(a)(2)
and (3)...” § 2J1.1, app. n.2.

                                                 5
     Here,   April   14,   2001   is       the   last   date   charged    in   the

indictment and sentencing occurred on December 19, 2001.                 The 2001

Sentencing Guidelines went into effect on November 1, 2001.                     As

such, we will assume that the defendant is entitled to have his

upward departure set aside if it was improper under either the 2000

or 2001 edition of the Guidelines.

     The 2000 Sentencing Guidelines provide simply that an upward

departure may be warranted “in cases where the loss determined

under subsection (b)(1) does not fully capture the harmfulness of

the conduct.” § 2B1.1, app. n.14.

     The 2001 Sentencing Guidelines are more elaborate. They state

in relevant part:

     “There may be cases in which the offense level determined
     under this guideline substantially understates the
     seriousness of the offense. In such cases, an upward
     departure may be warranted.     The following is a non-
     exhaustive list of factors that the court may consider in
     determining whether an upward departure is warranted:

     (i) A primary objective of the offense was an
     aggravating, non-monetary objective.      For example, a
     primary objective of the offense was to inflict emotional
     harm.
     (ii) The offense caused or risked substantial non-
     monetary harm. For example, the offense        c a u s e d
     physical harm, psychological harm, or severe emotional
     trauma, or resulted in a substantial invasion of a
     privacy interest, (through, for example, the theft of
     personal information such as medical, educational, or
     financial records).
     (iii) The offense involved a substantial amount of
     interest of any kind, finance charges, late fees,
     penalties, amounts based on an agreed-upon return or rate
     of return, or other similar costs, not included in the
     determination of loss for purposes of subsection (b)(1).
     (iv) The offense created a risk of substantial loss


                                       6
     beyond the loss determined for purposes of subsection
     (b)(1).
     (v) The offense endangered the solvency or financial
     security of one or more victims.....”§ 2B1.1, app. n.15

     In both versions of the guidelines, the Introduction instructs

that district courts are authorized to depart from the sentence

imposed by the guidelines in cases that feature “aggravating or

mitigating circumstances of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission.” U.S.S.G.

Ch. 1 Pt. A (b) (2001); Koon v. United States, 116 S. Ct. 2035,

2044 (1996).

     In Koon, the Court held that a district court's sentencing

departure “will in most cases be due substantial deference, for it

embodies the traditional exercise of discretion by a sentencing

court.” Id. at 2046.      The Court declared that a unitary abuse of

discretion    standard   was   to   be       used   when   reviewing   departure

decisions. Id. at 2047-48. The Court effectively rejected each of

the multi-step approaches to reviewing sentencing departures that

had been adopted by the various circuits and “collapsed” the steps

into a single inquiry. See United States v. Cali, 87 F.3d 571,

579-80 (1st Cir. 1996) (acknowledging that Koon established a

unitary   abuse   of   discretion   standard         for   reviewing   departure

decisions).

     The Court noted, however, that even under this deferential

abuse of discretion standard, a “district court by definition

abuses its discretion when it makes an error of law.” Id. at 2047.

                                         7
A district court abuses its discretion, and incorrectly applies the

guidelines,     where   it   relies    on   an   invalid   departure    ground.

Williams v. United States, 112 S. Ct. 1112 (1992). “Whether a

factor is a permissible basis for departure is a question of law we

review de novo.” United States v. Reyes, 239 F.3d 722, 744 (5th

Cir. 2001), cert. denied sub nom.

       In Koon, the Court outlined what factors a district court

should take into consideration when confronted with the question of

whether or not to depart in a particular case:

       “[A] sentencing court considering a departure should ask
       the following questions:

       1) What features of this case, potentially, take it
       outside the Guidelines' 'heartland' and make of it a
       special, or unusual, case?
       2) Has the Commission forbidden departures based on those
       features?
       3) If not, has the Commission encouraged departures based
       on those features?
       4) If not, has the Commission discouraged departures
       based on those features?”

Koon, 116 S.Ct. 2035, 2045.

       Ms. Howard’s victim impact statement, which was before the

court at sentencing, reflects that, as a result of appellant's

failure to pay child support, her daughter could not attend college

and that she had difficulty affording clothing for the family.              She

suffered    anger,   anxiety,       fear,   grief,   numbness,    sleep   loss,

insecurity, trouble concentrating, chronic fatigue, and depression

due to the absence of child support.             Under the 2001 Guidelines,

this    would   implicate     the     encouraged     factors:    (ii)   causing

                                        8
substantial non-monetary harm and (v) endangering the solvency or

financial   security   of   one   or   more    victims.     While    the   2000

Guidelines offer less guidance, since the (b)(1) calculation is

purely based on the monetary value of the loss, we cannot say that

the trial court abused its discretion by finding that, in light of

the kinds of non-monetary harms attested to by Ms. Howard, this

calculation does not fully capture the harmfulness of the conduct.

Moreover, taking the introductory comments into account, while it

can be argued that Mr. Howard's conduct is regrettably not much

different in kind than the typical deadbeat parent, the trial

court's finding that it is different to a meaningful degree is not

an abuse of discretion.

     Furthermore, the Eighth Circuit has recognized that cases

requiring application of the “most analogous” guideline under

section 2X5.1   are    “inherently     out    of   the   ordinary”   and   that

district courts should have "freedom to fashion the appropriate

sentence in these unconventional situations on a case by case

basis.” United States v. Osborne, 164 F.3d 434, 438 (8th Cir.

1999).   The Seventh Circuit expressed “serious[] doubt that a case

in which a district court is required to apply the most 'analogous'

guideline pursuant to U.S.S.G. § 2X5.1 can ever be found to fall

within the 'heartland' of that guideline.” United States v. Leahy,

169 F.3d 433, 441 (7th Cir. 1999).           While we decline to reach the

question of whether this Court should similarly hold that there is


                                       9
no heartland in CSRA cases, the fact that the Sentencing Commission

did not specifically address failure to pay child support makes it

less likely that they took into account the kind and degree of harm

in this particular case.

     The   appellant,   however,   alleges   that   the   district   court

departed upward simply because it disagreed with the guidelines.

“Dissatisfaction with the available sentencing range or preference

for a different sentence than that authorized by the guidelines is

not an appropriate basis for a sentence outside the applicable

guideline range.” United States v. McDowell, 109 F.3d 214, 219 (5th

Cir. 1997) (quoting U.S. Sentencing Guideline Manual § 5K2.0

commentary at 385 (2001)).

     The appellant cites the following colloquy at sentencing:

     “The Court: I think part of the problem is because the
     guidelines don't have a particular category for failure
     to pay child support, you are just tossed over into the
     general loss, financial loss category....
     The Court: Mr. Howard, I think this may well be the first
     time I have upward departed from the guidelines since I
     have been here but, I think, it is very much justified.
     You obviously are a bitter person, you have a chip on
     your shoulder that is a mile high and that's the burden
     that your children shouldn't be bearing, whatever caused
     it is for you...
     The Court: I think, frankly, before I realized that there
     was a statutory maximum, I had actually come to a
     sentence of three years. And the reason I came to that
     was because there were three children, not one child, and
     I thought a year for each child. Plus it has been three
     years since any money was paid off. And I was frankly
     disappointed to find out that my maximum is only twenty-
     four months, two years. I don't have any indication, Mr.
     Howard, that you really have any intention to pay this
     debt at all. And, frankly, I haven't seen in too many
     defendants a more belligerent attitude than the one I


                                   10
     have seen in you. I think it's ashamed [sic] that your
     children are the ones that had to bear the consequences
     of your attitude.
     Defendant: My attitude?
     The Court: Yes, your attitude.
     Defendant: She is the one that can't raise my kids.
     The Court: And it's being demonstrated again right here
     for the record...
     The Court: I find for the reasons that were stated in the
     government's Motion for an Upward Departure, as well as
     the reasons stated by the government today, and for the
     reasons I have stated, that the aggravating circumstances
     in this case are the kind and degree not adequately taken
     into consideration by the guidelines and, therefore, the
     upward departure is warranted.”

The defendant relies entirely on a colloquy in McDowell2 for the

proposition that the district court's statements here manifest the

same dissatisfaction and thus requires the sentence be invalidated,

as it was in McDowell.                  However, the cases are distinguishable.

First,      the     statement         in    this        case   was     purely      hypothetical,

suggesting what the court might have done if no guidelines were

applicable to this case. Furthermore, the judge here did not state

that the sentencing guideline “shocked her conscience.”                                      That is


     2
      In McDowell, the relevant statements in the sentencing colloquy were:

         “. . .Here's what just shocks my conscience. The offense level in this matter by the
         guidelines is 15 and the criminal history category is I, as I recall. . . . That provides for 18
         to 24 months. If I gave you 24 months -- you stole $292,000 that I want to doubt real
         serious you're going to have the wherewithal to pay back. So in essence what you will
         accomplish, if I give you two years, is . . . you're in essence basically earning $145,000 a
         year. . . . So what Im saying is that giving you two years, I really question how much
         punishment that is, inasmuch as you have had the benefit, the use and enjoyment, as well
         as your family, of $292,000 of Mr. Munson and his family's money. So I'm going to
         sentence you at an offense level of 19, departing upward four levels because of the similar
         uncharged offense . . . and I'm going to sentence you to 37 months. So now you're
         making 70 or 80 thousand a year while you sit in jail.” McDowell, 109 F.3d at 218.


                                                   11
quite different than the mere implication here that, were this

court starting from scratch, it might have come up with guidelines

that do not exactly mirror those in place.                          Although some of the

statements here may not have been ideally worded, they do not rise

to the level of demonstrating an unwillingness to follow the

guidelines.

            While some of the factors used by the district court in this

case to justify its upward departure, such as the defendant's

attitude, do not fall under 2B1.1, app. n.15 (i)-(v), none of these

factors       are   among     those      factors       that    §   5H1.10      or    any    other

provision       prohibits        as   bases      for    departure       (e.g.       race,    sex,

national origin, creed, religion, socioeconomic status).                                 Indeed,

appellant does not assert any such prohibited factors were used.

The Sentencing Commission specifically noted that it "does not

intend to limit the kinds of factors, whether or not mentioned

anywhere else in the guidelines, that could constitute grounds for

departure in an unusual case." 2001 U.S.S.G. ch. 1, pt. A, intro.

comment. 4(b).

           Even if this court were to find the trial judge's statements

in this case manifested some dissatisfaction with the guidelines,

the sentence should still be affirmed.3


       3
        We note that the McDowell court concluded, “Despite the court's error in departing
based on its own dissatisfaction with the available sentence, remand is not required to correct this
error. Remand is required unless we find that the district court would have imposed the same
sentence absent reliance on the improper factor. Here, the district court had the authority to make
the departure based only upon the likelihood of recidivism. Indeed, the court's written judgment

                                                12
       The court here explicitly stated that its upward departure was

based on “the factors stated in the government's Motion for an

Upward Departure, as well as the reasons stated by the government

today, and for the reasons I have stated.”                               In advocating its

Motion      for    Upward      Departure        at    the     sentencing        hearing,        the

government told the court, “And if the court looks at the facts

that are specific to this case, some of which I have already

mentioned, you will see what the impact is on the victim of this

particular crime which, I think, would require this Court to

consider an upward departure from the Sentencing Guidelines.”                                   The

government later directed the court's attention to the “victim’s

impact statement which was furnished to the Court by the former

Mrs. Howard” in order to contrast the lifestyle she and her

children were forced to live with that of the defendant.                                     These

facts on which the court relied in its upward departure go to the

harmfulness        of    defendant's         conduct        and    are    indicative         of    a

difference        in    the    kind     or   degree      of    harm      sustained      in    this

particular case such that it cannot be said that the trial court

abused its discretion.

       In summary, it is certainly not shown that the trial court's

sentence was based on dissatisfaction with the guidelines and, even

if some unacted on, abstract dissatisfaction with the guidelines is


reflects this very conclusion. As such, although the court erred, we find the error to be harmless.”
McDowell, 109 F.3d at 219 (footnote omitted).


                                                 13
not an entirely implausible interpretation of a portion of the

court's statements, there were sufficient reasons expressly relied

upon by the court, both those not prohibited by the guidelines and

those specifically encouraged by them, to support the upward

departure. No abuse of the district court’s discretion or error of

law has been demonstrated.

                             Conclusion

     Accordingly, the district court's judgment is
                             AFFIRMED.




                                14
