United States v. Begay ( 1998 )

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This order and judgment is not binding precedent, except under the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.
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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.
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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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