United States v. Contreras , 87 F. App'x 342 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50610
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO CONTRERAS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(EP-03-CR-114-ALL-PRM)
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Arturo Contreras, Jr. was sentenced to
concurrent 45-month terms of imprisonment and to a three-year term
of supervised release following his convictions for importing a
controlled substance containing a detectable amount of marijuana
and for possessing with the intent to distribute a controlled
substance containing a detectable amount of marijuana. See 21
U.S.C. §§ 841(a)(1), §§ 952(a), 960(a)(1). Over Contreras’s
objection, the district court also imposed a $300 fine.
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
The sole issue raised by Contreras on appeal is whether the
district court erred in imposing a fine. The government concedes
that the district court erred in imposing a fine and has submitted
a motion requesting that the fine be vacated, that the judgment
be modified accordingly, and that the judgment, as modified, be
affirmed. For the reasons set forth below, we grant the
government’s motion.
When, as in this case, the district court adopts a presentence
report (PSR) that shows limited or no ability to pay a fine, the
government must come forward with evidence showing that a defendant
can, in fact, pay a fine. See United States v. Fair, 979 F.2d
1037, 1041 (5th Cir. 1992). No such evidence was adduced in this
case, and the district court did not make specific findings
regarding Contreras’s ability to pay a fine. Consequently, we
cannot affirm the district court’s imposition of the fine. See
United States v. Hodges, 110 F.3d 250, 251 (5th Cir. 1997).
Given our determination that the fine cannot stand, and in
view of the government’s request that we vacate and modify the
sentence rather than reversing it and remanding the issue of the
fine to the district court, we vacate the portion of Contreras’s
sentence that imposes a $300 fine, and we modify the district
court’s judgment accordingly. As thus modified, we affirm the
sentence imposed by the district court.
MOTION GRANTED; FINE VACATED; SENTENCE MODIFIED and, as
modified, AFFIRMED.
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