United States v. Julian Santana Ramirez ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12128 JULY 9, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:10-cr-00038-WCO-SSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN SANTANA RAMIREZ,
a.k.a. Julian Carrera Preciado,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 9, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Julian Santana Ramirez appeals his $1000 fine, imposed below the
applicable guideline range, after pleading guilty to one count of illegal reentry of a
deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Ramirez
argues that the district court committed plain error because the record provides no
justification for the fine. Ramirez contends that he cannot currently repay the fine
and that it will impose a large burden on him and his family.
Where, as here, the defendant fails to object to the imposition of a fine at the
sentencing hearing, we review the district court’s judgment for plain error. United
States v. Hernandez, 160 F.3d 661, 665 (11th Cir. 1998).
The Sentencing Guidelines provide that “[t]he court shall 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). “It is clear from
section 5E1.2 that the burden is on the defendant to prove an inability to pay the
fine.” Hernandez, 160 F.3d at 665. When deciding whether to impose a fine, the
district court considers the 18 U.S.C. § 3553(a) sentencing factors, as well as the
defendant’s income, earning capacity, and financial resources. 18 U.S.C.
§ 3572(a), (a)(1). The court also can consider the burden the fine will impose on
the defendant and his dependents. Id. § 3572(a)(2).
The district court is not required to make specific findings regarding the
factors as long as the record reflects that the court considered the factors in
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imposing the fine. Hernandez, 160 F.3d at 665-66. Where a party fails to object
to a fine, the district court has “no notice of the need to make further findings” and
as a result, “there is nothing in the record to guide us in our review of the court’s
judgment.” Id. at 666. Had Ramirez objected, “the district court could have
addressed more specifically on the record its reasons for imposing the fine.” Id.We find no plain error here. First, the PSI stated that Ramirez may be able
to pay a fine lower than the guideline range of $7500 to $75,000, and Ramirez did
not object to this finding. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006) (noting that failure to object to facts in the PSI “admits those facts for
sentencing purposes” and precludes a later argument that the district court erred).
Second, although the district court did not discuss Ramirez’s ability to pay or the
basis for imposing the fine, the court had no notice of a need to do so. See
Hernandez, 160 F.3d at 665-66. Third, even considering the merits of Ramirez’s
argument, we find no error in the district court’s conclusion that Ramirez could
pay $1000, given that he had previously paid a fine of $1554, had income of
several hundred dollars per week before his arrest, had owned a store in Mexico,
and had paid at least several hundred dollars to get into the United States.
AFFIRMED.
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