United States v. Steve Wade Lambert , 213 F. App'x 846 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 8, 2007
No. 06-11940 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00007-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE WADE LAMBERT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 8, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Steve Wade Lambert appeals the $1,000 fine imposed as part of his total
sentence for illegally possessing a firearm, in violation of 18 U.S.C. § 922(g). We
AFFIRM.
I. BACKGROUND
Lambert pled guilty to one count of possession of a firearm after previously
having been convicted of a felony, in violation of § 922(g).1 When the police
searched Lambert’s house, following an altercation between Lambert and a
neighbor, they located 10 guns and 1,099 rounds of ammunition.
With a total offense level of 15, and a criminal history category of I, the
probation officer calculated an advisory Sentencing Guidelines range of 18 to 24
months of imprisonment and a fine range of $4,000 to $40,000. His Presentence
Investigation Report (“PSI”) shows that (1) Lambert was completely disabled as a
result of an accident in 1985, and (2) the Social Security Administration showed no
FICA earnings for him for the years 1993 to 1997 and 1999 to 2006. In 1998,
Lambert’s earnings totaled $1,864.38. Lambert (1) filed for bankruptcy in 1998,
(2) had no outstanding debts, and (3) had two assets, his truck and the land on
which he lived, which together were worth $40,000. Lambert provided
information showing that his monthly income from Social Security disability
benefits and food stamps was $1,279, but he had a negative monthly cash flow of
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Lambert was represented by a federal defender, both in the district court and on appeal.
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$111. The probation officer concluded that it was unlikely that Lambert could pay
a fine within the Guidelines range, but that he possibly could make payments
through the Bureau of Prisons’ Inmate Financial Responsibility Program (“BOP
Program”). The probation officer recommended a sentence of 21 months of
imprisonment and a fine of $1,000.
At sentencing, the district judge adopted the PSI, and Lambert's counsel
requested a sentence below the advisory Guidelines range because of Lambert's
physical disability. The judge sentenced Lambert to 24 months of imprisonment
and imposed a $1,000 fine, noting that “[t]he defendant may make payments from
any wages he may earn, if able to do so, in prison.” R5 at 14. Lambert’s counsel
objected to the fine based on Lambert's inability to pay a fine and to DNA testing
being a condition of his supervised release. Although the objection to the fine was
not explicitly addressed, the judge apparently overruled it when it overruled
Lambert’s objection to the DNA testing as a condition of his supervised release.
Id. at 15-16.
II. DISCUSSION
On appeal, Lambert argues that the district judge abused his discretion when
he imposed a $1,000 fine because Lambert did not have the ability to pay it. He
asserts that (1) he has been disabled since 1985, (2) since that time, his sole source
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of income, with one exception, has been Social Security benefits, (3) his only
assets are his truck and his home, (4) after expenses, he has a monthly deficit of
$111, and (5) he is represented by a federal defender. Accordingly, he contends
that he does not have the present ability to pay the fine. Because of his disability,
he argues that he will be unable to pay the fine, even under a payment schedule,
because he will be unable to perform manual labor in prison to contribute to the
fine.
He also asserts that the fine will impose a burden on his family, because
their sole means of support are his Social Security benefits, which will be
suspended while he is imprisoned. Citing United States v. Rowland, 906 F.2d 621(11th Cir. 1990), he argues that, under these facts, it was an abuse of discretion for
the judge to have imposed a fine. Finally, he contends (1) that the district judge
erred when he failed to consider the U.S.S.G. § 5E1.2 (Nov. 2005) factors in
imposing his fine, and (2) that there was no factual support for the imposition of
the fine.
We review a district court’s imposition of a fine for clear error. United
States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006) (per curiam). “'The
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 [] even with the
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use of a reasonable installment schedule.' [The] [d]efendant has the burden of
proving inability to pay.” Id. (quoting U.S.S.G. §§ 5E1.2(a), (e)(1)).
“When a fine is found to be appropriate, the sentencing court must ‘refer to
the table setting amounts of fines for different offense levels, then consider seven
listed factors, including any pertinent equitable concerns, in deciding the amount of
the fine to impose within the range.’” United States v. Paskett, 950 F.2d 705, 709
(11th Cir. 1992) (citation omitted). The Application Notes to § 5E1.2 state that
“the fact that a defendant is represented by (or was determined eligible for)
assigned counsel [is a] significant indicator[ ] of present inability to pay any fine.
In conjunction with other factors, [it] may also indicate that the defendant is not
likely to become able to pay any fine.” U.S.S.G. § 5E1.2 cmt. n.3. In Paskett, we
vacated a $100,000 fine and concluded that the record was insufficient to allow
review when the district judge failed to discuss explicitly the § 5E1.2 factors.
Paskett, 950 F.2d at 709.
Because this case presents a close question, the district judge did not clearly
err in imposing the $1,000 fine. First, Lambert did not raise any objections to the
fine, or any arguments concerning his inability to pay it, until after the judge
imposed his fine. R5 at 2-15. He stated only that he did not have the ability to pay
the fine. Id. at 15. Although there was information regarding his financial status
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in his PSI, Lambert did not bring this information to the court’s attention.
Lambert’s general objection, unsupported by any proffered facts or evidence, was
insufficient to meet his burden to prove his inability to pay the fine. McGuinness,
451 F.3d at 1307.
Second, although it appears that the district judge implicitly overruled
Lambert’s objection to the fine, he did not discuss the fine at all, even after
Lambert objected to it. Id. at 15. We have held that, when a district judge fails to
discuss explicitly the § 5E1.2 factors, we are required to remand for resentencing.
See Paskett, 950 F.2d at 709. At sentencing, the district judge noted that Lambert's
fine could be paid in accordance with the BOP Program, if he were able to work in
prison, which indicates that the judge had considered Lambert’s disability when he
imposed the fine. R5 at 14.
Third, there are conflicting facts in the record concerning Lambert’s ability
to pay the fine. The undisputed facts contained in the PSI show that (1) Lambert
has been disabled since 1985, (2) his family’s sole means of support are the Social
Security benefits that he and his son collect, (3) his sole assets, collectively worth
$40,000, are his truck and the land on which he lives, and (4) he incurs a monthly
deficit of $111. The record also shows that he has at least one other asset, namely,
the guns that led to his crime in this case. Lambert possessed 10 firearms and over
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1,000 rounds of ammunition.
Lambert cites Rowland for the proposition that the district judge abused his
discretion because the evidence does not support the fine imposed. In Rowland,
the convicted defendant had been arrested when he tried to make a large marijuana
purchase from undercover law enforcement agents. Rowland, 906 F.2d at 622. At
the time when he was arrested, he had $35,000 in cash, which the government later
seized, and his PSI indicated that he earned only $100 to $125 a week, had $8,000
in assets, and had child support obligations. Id. at 622, 624. Reasoning that the
defendant had $35,000 when he was arrested, and, therefore, had undisclosed
assets that could be used to pay the fine, the district judge imposed a $50,000 fine.
Id. at 623. We vacated the fine and held that it was not reasonably supported by
probative evidence, because there was no evidence that Rowland owned the
$35,000. Id. at 624. Rowland, however, is distinguishable from this case. First,
Lambert received a $1,000 fine, not a $50,000 fine, which he is more likely to be
able to pay, even with his limited financial resources. Second, Lambert apparently
did have undisclosed assets, namely, the firearms.
Because Lambert presented no facts to the sentencing judge showing that he
was unable to pay the fine, and there is some evidence that he had assets that could
be used to pay it, Lambert failed to meet his burden of proving that he could not
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pay the fine. McGuinness, 451 F.3d at 1307. Accordingly, the district judge did
not clearly err in imposing the fine.
III. CONCLUSION
Lambert has appealed the $1,000-fine portion of his sentence following his
plea to § 922(g), possession of a firearm after previously having been convicted of
a felony. Because he did not prove that he was unable to pay the fine and there
was some evidence in the record that he had assets that could be used to pay it, the
district judge did not clearly err in imposing his fine. Therefore, the imposition of
Lambert's $1,000 fine is AFFIRMED.
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