United States v. Omar Morin , 477 F. App'x 280 ( 2012 )

Case: 11-41086 Document: 00511936562 Page: 1 Date Filed: 07/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2012
No. 11-41086
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR MORIN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-938-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Omar Morin appeals the below-Guidelines $1,000 fine imposed as part of
his sentence for transporting an illegal alien for private financial gain. We
AFFIRM.
The fine must be paid in $50 monthly installments beginning 60 days after
his release from prison. According to Morin, the Government failed to show that
he has the ability to pay a fine. The district court implicitly found that, while
Morin has no present ability to pay, he has the future earning capacity to satisfy
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-41086
the fine. Defense counsel admitted that there is no reason why Morin cannot
work, and the presentence report (PSR) described him as a 21-year-old United
States citizen who lives with his parents and has no physical impediments,
health problems, substance abuse issues, or dependents. The finding on Morin’s
ability to pay is plausible in light of the record as a whole and is not clearly
erroneous. See United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994);
United States v. Rogers, 1 F.3d 341, 342 (5th Cir. 1993).
Next Morin contends that the district court incorrectly assumed that he
would become able to pay the fine so long as he was motivated to get a job. The
burden was on Morin to prove his inability to pay, and he made “no showing that
[he would] be unemployable after his prison term.” United States v. Matovsky,
935 F.2d 719, 723 (5th Cir. 1991).
Morin also contends that the district court failed to make required findings
on his ability to pay. However, because the PSR did not recommend against
imposing a fine, the district court was not required to make express findings on
Morin’s ability to pay. See United States v. Voda, 994 F.2d 149, 155 n.14 (5th
Cir. 1993); Matovsky, 935 F.2d at 722. Morin fails to show error, plain or
otherwise.
According to Morin, the district court relied on improper factors to
determine the amount of the fine, including the court’s perception that he
needed a shock or an incentive to get a job because it was time for him to grow
up. The district court clearly indicated that the purpose of the sentence,
including the fine, was to deter Morin from committing future crimes. The need
for deterrence was a proper consideration in determining the amount of the fine.
See 18 U.S.C. § 3572(a); 18 U.S.C. § 3553(a)(2)(B); U.S.S.G. § 5E1.2(d)(1). While
the district court discussed its opinion that Morin needed to get a job and “grow
up,” it was in the context of encouraging him to avoid trouble in the future.
Morin also notes that he has no prior convictions and contends the $1,000
fine was not required to punish him, deter him, or promote respect for the law.
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No. 11-41086
The district court considered Morin’s history and characteristics and the need
for deterrence. Morin’s disagreement with the district court’s weighing of the
sentencing factors does not show that the court committed error, plain or
otherwise, in imposing the below-guidelines sentence. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Hernandez, 633 F.3d 370, 375-76 (5th
Cir.), cert. denied, 131 S. Ct. 3006 (2011).
Citing a Tenth Circuit case, Morin further contends that the district court
was required to indicate that it considered all of the relevant factors prior to
imposing the fine. We do not require such an indication on the record. See
Matovsky, 935 F.2d at 722. Morin also cites § 5E1.2(d)(3) for the proposition that
“the district court should have considered alternative punishments” because of
his family’s “dire economic situation.” Section 5E1.2(d)(3) states that the court
“shall consider . . . the burden that the fine places on the defendant and his
dependents relative to alternative punishments.” Morin has no dependents, and
the district court expressly found that the burden on him would not be too great.
He also contends that the district court improperly considered his employment
history in imposing the fine, citing U.S.S.G. § 5H1.5 (p.s.). The policy statement
provides that an employment record “is not ordinarily relevant in determining
whether a departure is warranted.” § 5H1.5 (p.s.). By its own wording, it does
not apply here because Morin’s fine was not the result of a departure. See id.
We find no plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Finally, for the first time in his reply brief, Morin asserts that his sentence
is procedurally unreasonable because the district court imposed the fine at the
end of the sentencing hearing without first asking the parties for their positions.
We will not consider issues raised for the first time in a reply brief. United
States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
The judgment of the district court is AFFIRMED.
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