United States v. Michael Andrew Gill

264 F.3d 929 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL ANDREW GILL, DEFENDANT-APPELLANT. No. 00-10304 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 9, 2001--San Francisco, California Filed September 6, 2001 Counsel Eric V. Kersten, Assistant Federal Public Defender, Fresno, California, for the defendant-appellant. Stanley A. Boone, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding D.C. No. CR 99-5443 AWI Before: Stephen Reinhardt, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges. Tashima, Circuit Judge 1 Michael Gill ("Gill") appeals the restitution imposed for his willful failure to pay child support under the Child Support Recovery Act ("CSRA"), 18 U.S.C. §§ 228 (a). We must decide whether the restitution order properly included accrued interest as part of his unpaid child support obligation when the underlying state court order made no express mention of interest, but the applicable state law clearly mandated the accrual of interest on any…

Opinion by Judge TASHIMA; Dissent by Judge REINHARDT

Michael Gill (“Gill”) appeals the restitution imposed for his willful failure to pay child support under the Child Support Recovery Act (“CSRA”), 18 U.S.C. § 228 (a). We must decide whether the restitution order properly included accrued interest as part of his unpaid child support obligation when the underlying state court order made no express mention of interest, but the applicable state law clearly mandated the accrual of interest on any delinquent payments as set forth in the order. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I.

There is no dispute as to the facts relevant to this appeal. Gill and his ex-wife, Odettelynn Murphy, together had two children. They were born on August 4, 1981, and January 14, 1985. The couple divorced in November, 1987. On November 6, 1987, the San Joaquin County Superior Court, in California, ordered Gill to pay child support in the amount of $150 per child, per month, until the children reached the age of 18, were married, or were otherwise emancipated. The state child support order made no express mention of interest on delinquent payments. California law, however,…

dissenting:

The majority opinion adopts a harsh interpretation of the Child Support Recovery Act (“CSRA”) that fails to comport with the statutory language. It is important to note at the outset that the CSRA is a criminal statute. Given its proper construction, it does not permit the inclusion of accrued interest or any other item not referred to in the underlying court order when the sentence and order of restitution are being determined. Accordingly, Mr. Gill’s sentence, including the restitution order, should be reversed and his case remanded for further proceedings.

When defining the “support obligation” to be paid, the CSRA provides that it is “any amount determined under a court order ...” 18 U.S.C. § 228 (f)(3) (emphasis added). This demonstrates that Congress intended that the determination be made pursuant to the terms of the court order awarding support payments and not pursuant to some other provision, statutory or otherwise, not specified or referred to in that order. In short, what is to be paid as a “support obligation” is what the state court order directs be paid' — no more, no less. The CSRA requires the state court issuing the order to establish *934 what the…