United States v. Peterson

Opinion

F I L E D United States Court of Appeals Tenth Circuit

MAY 9 1997 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-3280 v. D. Kansas LARRY J. PETERSEN, (D.C. No. 94-CR-10085)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, TACHA, and BRORBY, 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. This cause is therefore ordered

submitted without oral argument.

Appellant Larry J. Petersen, appearing by consent before a magistrate judge,

entered a plea of no contest to a superseding information charging him with failing to pay

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. child support obligations in violation of the Child Support Recovery Act of 1992 (CSRA),

18 U.S.C. § 228. Pursuant to the plea, the magistrate judge found Mr. Petersen guilty of

the charge and sentenced him to three years’ supervised probation and payment of

$5,274.00 in restitution. Mr. Petersen appealed the sentence to the district court, which

affirmed. On appeal to this court, Mr. Petersen continues to challenge his sentence on the

basis that the order of restitution, which includes approximately $4,700.00 in child

support incurred prior to the enactment of the CSRA, violates the Ex Post Facto Clause.

We recently addressed this precise argument and found it to be without merit. See United

States v. Hampshire, 95 F.3d 999, 1006-06 (10th Cir. 1996), cert. denied, 117 S. Ct. 753

(1997). Although Mr. Petersen attacks the rationale of and attempts to distinguish

Hampshire, he acknowledges that the primary purpose of this appeal is to “preserv[e] this

issue for further review to the Supreme Court.” Appellant’s Br. at 7. Since Hampshire is

controlling, we AFFIRM Mr. Petersen’s sentence.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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