United States v. Steven Parum ( 2018 )

Case: 17-50370 Document: 00514416782 Page: 1 Date Filed: 04/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50370
Fifth Circuit
FILED
Summary Calendar April 5, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
STEVEN AARON PARUM,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:17-CR-2-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Steven Aaron Parum appeals his guilty plea conviction of felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
argues that the district court erred by failing to consider the burden imposed
on his dependents before imposing a $30,000 fine. He also argues that the
district court impermissibly delegated to the probation office the authority to
establish a payment schedule for the fine and that an ambiguity exists
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50370
regarding the oral pronouncement of sentence and the written judgment
regarding establishment of and approval of a schedule for paying the fine.
Because Parum did not object to the district court’s imposition of the fine,
this court’s review is for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009); United States v. Pacheco-Alvarado, 782 F.3d 213, 220-21 (5th
Cir. 2015). Where, as in the instant case, the district court imposes a fine that
is within the applicable guidelines range, the fine is presumed reasonable.
See Pacheco-Alvarado, 782 F.3d at 220-21.
The PSR indicated that Parum had the ability to pay a fine, and Parum
bore the burden of establishing his inability to pay. See United States v. Fair,
979 F.2d 1037, 1041-42 (5th Cir. 1992); United States v. Matovsky, 935 F.2d
719, 722 (5th Cir. 1991). The district court explicitly determined that Parum
had the ability to pay a fine and, through its adoption of the PSR, the district
court sufficiently considered facts relevant to the 18 U.S.C. § 3572(a) factors,
including the impact of the fine on Parum’s dependents. See § 3572(a)(2);
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012); United States v.
Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). More explicit rationale is not
necessary in light of Parum’s failure to object to the finding that he had the
ability to pay a fine. See United States v. Voda, 994 F.2d 149, 155 n.14 (5th
Cir. 1993); Matovsky, 935 F.2d at 722. Accordingly, the district court did not
commit plain error in imposing the $30,000 fine. See Puckett, 556 U.S. at 135.
To the extent Parum argues that there exists a conflict between the
written judgment and the district court’s oral pronouncement of sentence, this
court’s review is for abuse of discretion. See United States v. Torres-Aguilar,
352 F.3d 934, 935 (5th Cir. 2003). “[U]nclear or ambiguous sentences must be
vacated and remanded for clarification in the interest of judicial economy and
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fairness to all concerned parties.” United States v. Garza, 448 F.3d 294, 302
(5th Cir. 2006) (internal quotation marks and citation omitted).
An ambiguity exists in the record regarding whether the district court
intended to approve a payment schedule for the fine, as set forth in the written
judgment, or whether the district court intended to delegate establishment of
a payment schedule to the probation officer, as set forth at the sentencing
hearing. The provision regarding establishment of the payment schedule in
the written judgment is therefore vacated and a limited remand is ordered for
the purpose of clarifying this ambiguity. See United States v. Franklin, 838
F.3d 564, 566-68 (5th Cir. 2016); Pacheco-Alvarado, 782 F.3d at 222-23.
The judgment of the district court is AFFIRMED IN PART; the portion
of the judgment relating to establishment of a payment schedule is VACATED;
a LIMITED REMAND IS ORDERED for the purpose of clarifying the
ambiguity regarding establishment of and approval of a fine payment schedule.
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