USA vs. Keating, (5th Cir. 2001)

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* Pursuant to 5 TH C IR . R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31461 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SEAN C. KEATING, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CR-50033-ALL May 29, 2001 Before GARWOOD, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM: * Sean C. Keating appeals the sentence he received after he pleaded guilty to failing to pay a past due child support obligation for more than two years in a n amount in excess of $10,000, in violation of 18 U.S.C. § 228(a)(3). Keating§ 2B1.1(b)(4)(A) lacks merit. Under U.S.S.G. § 1B1.5(a) & (b)(1), the reference in section 2J1.1, n.2 to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft)” must be taken as including the entire section 2B1.1 guideline, including section 2B1.1(b)(4)(A). Section 1B1.5(b)(2) does not apply because the 2J1.1 reference is not merely “[a]n instruction to use a particular subsection or table from another offense guideline.” Although all failure-to-pay-child-support cases will involve moving out of state and an accumulation of unpaid obligations, Keating not only did not pay child support for more than four years, but further, as the PSR also recited, “constantly moved about, and . . . was usually paid ca sh by his employers in an effort to conceal his whereabouts and to avoid garnishment of his wages.” There was no challenge to these factual recitals. Thus, the district court did not err when it enhanced KeatingÂ’s sentence.

United States v. Lage , 183 F.3d 374, 384 (5th Cir. 1999), c ert. Denied , 528 U.S. 1163 (2000).

AFFIRMED

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