United States v. Armando Guzman-Castro , 321 F. App'x 820 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15558 MAR 20, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00024-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO GUZMAN-CASTRO,
a.k.a. Alejandro Castro-Guzman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 20, 2009)
Before DUBINA, WILSON and FAY, Circuit Judges.
PER CURIAM:
Appellant Armando Guzman-Castro pleaded guilty to being an alien found
within the United States without authorization after having been previously
deported and removed from the country, in violation of 8 U.S.C. § 1326(a). He
now appeals the district court’s imposition of a $200 fine and a special condition
of supervised release, requiring him to inform the probation officer in writing of
his address in Mexico within one week of his deportation from the United States.
I.
First, Guzman-Castro argues that the district court clearly erred in imposing
a $200 fine because the presentence investigation report (“PSI”) reflected that he
did not have the ability to pay a fine within the applicable guideline range, which
was a fine between $500 and $5,000. He argues that the district court did not
explain its decision to impose a fine, and it did not respond to his objection to the
fine at sentencing. He further argues that there was no evidence that he could pay
the fine. Guzman-Castro contends that the district court’s failure to provide a
reasoned basis for the fine requires that the sentence be vacated.
We review a district court’s decision that a defendant can pay a fine for
clear error. United States v. Gonzalez, 541 F.3d 1250, 1255 (11th Cir. 2008)
(quoting United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006) (per
curiam)). The defendant bears the burden of proving an inability to pay. Id. The
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Guidelines require the district court to “impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is not likely to become able
to pay any fine.” U.S.S.G. § 5E1.2(a). In determining whether to impose a fine,
the district court considers, in relevant part, and in addition to the 18 U.S.C. §
3553(a) sentencing factors, “the defendant’s income, earning capacity, and
financial resources; [and] the burden that the fine will impose upon the defendant,
any person who is financially dependent on the defendant, or any other person
(including a government) that would be responsible for the welfare of any person
financially dependent on the defendant, relative to the burden that alternative
punishments would impose.” 18 U.S.C. § 3572(a) (1) - (2).
If the court concludes that a fine is appropriate, it should consider, inter
alia, the following in determining the amount of the fine:
(1) the need for the combined sentence to reflect the seriousness of
the offense (including the harm or loss to the victim and the gain to
the defendant), to promote respect for the law, to provide just
punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendant’s ability to pay the fine
(including the ability to pay over a period of time) in light of his
earning capacity and financial resources;
...
(8) any other pertinent equitable considerations.
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The amount of the fine should always be sufficient to ensure that the
fine, taken together with other sanctions imposed, is punitive.
U.S.S.G. § 5E1.2(d). The court may impose a lesser fine or waive a fine if the
defendant establishes “that (1) he is not able and, even with the use of a reasonable
installment schedule, is not likely to become able to pay all or part of the fine
required by [application of § 5E1.2], or (2) imposition of a fine would unduly
burden the defendant’s dependents.” Id. § 5E1.2(e).
“We do not require the sentencing court to make specific findings of fact
with respect to the Sentencing Guideline factors as long as the record reflects the
district court’s consideration of the pertinent factors prior to imposing the fine.”
Gonzalez, 541 F.3d at 1256 (quotation & alteration omitted). “If the record does
not reflect the district court’s reasoned basis for imposing a fine, we must remand
the case so that the necessary factual findings can be made.” Id. (quotation
omitted). In Gonzalez, we vacated the court’s sentence and remanded the case for
resentencing, because (1) the PSI provided a detailed financial analysis of the
defendant’s assets and concluded that the defendant lacked the ability to pay a fine
in addition to mandatory restitution, (2) the court gave no explanation for the
above-range fine that it imposed, and (3) the defendant objected to the fine. Id.Here, we conclude from the record that the district court did not clearly err
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in imposing a $200, below-range fine because Guzman-Castro failed to prove that
he would not be able to pay the fine.
II.
Next, Guzman-Castro challenges on two grounds the district court’s
requirement that he inform the probation office in writing of his address in
Mexico. First, he contends that the district court lacked authority to impose this
condition under 18 U.S.C. § 3583(d). Because § 3583(d) specifically addressed
supervised release in connection with deportation but did not specifically
authorize the court’s reporting requirement, Guzman-Castro contends that the
latter requirement was not authorized under the canon of statutory construction
known as expressio unius est exclusio alterius. In this regard, he argues that the
“catchall” provision in § 3583(d) does not authorize the court to impose the
reporting requirement. Finally, he submits that, because there would be no way to
enforce a violation of this condition while he remained outside the United States,
the condition “effectively toll[ed] his supervised release until a hypothetical future
return,” which is prohibited under United States v. Okoko, 365 F.3d 962 (11th Cir.
2004). Second, he contends that the court’s condition is “unreasonable” because it
did not relate to the factors in 18 U.S.C. § 3553(a) that are cross-referenced in
§ 3583(d). In addition, Guzman-Castro submits that complying with the reporting
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requirement is a “practical impossibility” because he will have no financial
resources or family support upon his arrival in Mexico. For these reasons,
Guzman-Castro requests that we vacate the judgment so that the district court may
remove the reporting requirement.
“We review the district court’s imposition of a special condition of
supervised release for abuse of discretion, so long as the objection was preserved
for appeal.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003). With
respect to the court’s authority to impose special conditions of supervised release,
18 U.S.C. § 3583(d) provides in pertinent part:
The court may order, as a further condition of supervised release, to
the extent that such condition –
(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in
section 3563(b) and any other condition it considers to be appropriate
....
18 U.S.C. § 3583(d); see also U.S.S.G. § 5D1.3(b); Okoko, 365 F.3d at 965 n.5
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(“Because . . . § 5D1.3 mirrors the language used in this statute, we consider it
together with 18 U.S.C. § 3583(d) in reviewing the district court’s imposition of a
special condition on a supervised release.”).
In United States v. Guzman, ___ F.3d ___, No. 08-14077 (11th Cir. Feb. 18,
2009), we addressed an almost identical special condition of supervised release.
In that case, the district court imposed a requirement that the defendant inform his
probation officer in writing of his address in Mexico within 72 hours of his
deportation from the United States. Id. at ___. The defendant in Guzman offered
identical arguments to those offered by Guzman-Castro in the instant case: (1) the
reporting requirement was not related to the applicable § 3553(a) factors; (2) it
would be practically impossible to comply with the reporting requirement due to
his lack of financial resources; (3) the reporting requirement was prohibited by the
canon of statutory construction known as expressio unius est exclusio alterius
because a specific reference to deportation in § 3583(d) precluded imposing a
reporting requirement under § 3583(d)’s catchall provision; and (4) the reporting
condition constituted tolling of his supervised release in violation of Okoko. See
Id. at ___. We then concluded that the reporting requirement was designed to
ensure that the defendant stayed in Mexico by discouraging him from immediately
re-entering the United States and allowing the probation officer to monitor his
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location. Id. at ___. We held that the condition satisfied the § 3553(a) factors of
deterrence and protecting the public from any future attempt at re-entry. Id.; see
18 U.S.C. §§ 3553(a)(2)(B)-(C), 3583(d)(1).
Finally, in Guzman, we held that (1) § 3583(d)’s reference to deportation
did not, by negative implication, preclude the court from imposing the reporting
requirement under § 3583(d); and (2) Okoko was not applicable because the
instant reporting condition took effect upon the deportee’s arrival in Mexico and
did not toll the supervised release period. Guzman, ___ F.3d at ___.
In light of Guzman, we conclude that the district court had authority under
§ 3583(d) to impose the instant reporting requirement and, because this condition
of supervision satisfied the statutory criteria, the court did not abuse its discretion
in imposing the condition.
III.
Finally, the district court’s written judgment and oral pronouncement of
sentence conflicted. During the sentencing hearing, the district court imposed a
one-year term of supervised release and lengthened the time for Guzman-Castro to
report his address in Mexico from three days to one week. The written judgment
stated that the term of supervised release was three years and the time for
Guzman-Castro to report his address in Mexico was three days. “When a sentence
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pronounced orally and unambiguously conflicts with the written order of
judgment, the oral pronouncement governs.” United States v. Bates, 213 F.3d
1336, 1340 (11th Cir. 2000). Accordingly, we affirm the imposition of the $200
fine and the reporting condition of supervised release, but we remand for the
limited purpose of correcting the clerical error in judgment.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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