United States v. Begay

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 13, 1998
• Docket: 97-4060
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 13 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4060 (D.C. No. 95-CV-155) NELSON BEGAY, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant appeals from the denial of his motion to vacate, set aside,

or correct sentence under 28 U.S.C. § 2255. He contends that one of two counts

in his July 1991 indictment for child sexual abuse, relating to conduct occurring

between January 1 and March 1, 1986, was barred by the five-year statute of

limitations set out in 18 U.S.C. § 3282. The dispositive issue is whether a more

recently enacted tolling provision for such offenses, which extends the limitations

period until the victim reaches the age of twenty-five, see 18 U.S.C. § 3283

(formerly 18 U.S.C. § 3509(k)), took effect before March 1, 1991, when the

five-year period for the challenged count expired. The district court held that

the latter provision took effect upon its enactment on November 29, 1990, and,

accordingly, denied the motion. We review this legal determination de novo,

see generally United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996), and

affirm for substantially the reasons stated by the district court.

The tolling provision in question was passed as § 225(a) of Public Law

No. 101-647, 104 Stat. 4789, 4798 (1990). Relying on § 3631 of the same

legislation, which states that “this Act . . . shall take effect 180 days after the date

of [its] enactment,” defendant contends the effective date for § 225(a) was

postponed until May 28, 1991. A brief review of the structure of Public Law

No. 101-647, and the placement of §§ 225 and 3631 therein, reveals the

spuriousness of this contention.

-2- Public Law No. 101-647 has thirty-seven titles known in aggregate as the

Crime Control Act of 1990, but reflecting an array of substantively heterogeneous

pieces of legislation, many bearing independent “Act” appellations. Thus, as the

Historical and Statutory Note to 28 U.S.C. § 3001 indicates, and numerous cases

illustrate, the 180-day delay imposed by § 3631 for “this Act” actually relates to

Title XXXVI of Public Law No. 101-647, “popularly known as the Federal

Debt Collection Procedures Act of 1990.” See, e.g., Selbe v. United States,

912 F. Supp. 202, 205 (W.D. Va. 1995); United States v. Dickerson, 790 F. Supp.

1583, 1584 (M.D. Ga. 1992); United States v. Gelb, 783 F. Supp. 748, 751-52

(E.D.N.Y. 1991). Section 225(a), in contrast, is a criminal code provision having

nothing to do with the FDCPA, textually or substantively.

Section 225(a) has no dedicated effective date provision and, hence,

is governed by the settled rule that “absent a clear direction by Congress to the

contrary, a law takes effect on the date of its enactment.” Gozlon-Peretz v.

United States, 498 U.S. 395, 404 (1991); see Bradshaw v. Story, 86 F.3d 164, 166

(10th Cir. 1996). We therefore conclude that “section 225(a) . . . took effect on

the date of enactment of Pub.L. 101-647, which was approved Nov. 29, 1990.”

Historical and Statutory Note to § 3509. As the statute of limitations had not

at that time expired on defendant’s child abuse offenses, § 225(a) properly

applied and extended the limitations period beyond the date of indictment.

-3- See United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (similarly holding

§ 3509(k) extended time-bar before limitations period for defendant’s sex

offenses expired on December 1, 1990). See generally United States v.

Taliaferro, 979 F.2d 1399, 1402 (10th Cir. 1992) (“application of an extended

statute of limitations to offenses occurring prior to the legislative extension,

where the prior and shorter statute of limitations has not run as of the date of such

extension, does not violate the ex post facto clause”). Defendant’s associated

claim of ineffective assistance of counsel, based on the failure to assert the

time-bar, obviously must fall with the defense on which it is premised.

The judgment of the United States District Court for the District of Utah

is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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