United States v. Hubbard ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-60923
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE RAY HUBBARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:01-CR-20-1
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Willie Ray Hubbard appeals from his conviction and sentence
for being a felon in possession of a firearm. 18 U.S.C. §§ 922(g)
and 924(a)(2). He argues that (1) the district court abused its
discretion in refusing to instruct the jury on the affirmative
defense of duress, (2) the evidence was insufficient, and (3) the
*
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that this opinion should not be published and is not precedent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.
No. 02-60923
-2-
district court abused its discretion in sentencing him to pay a
$50,000 fine.
Because duress is an affirmative defense, a defendant must
present evidence of each of the elements of the defense before it
may be presented to the jury. See United States v. Posada-Rios,
158 F.3d 832, 873 (5th Cir. 1998). There must “exist[] evidence
sufficient for a reasonable jury to find in his favor.” Mathews v.
United States, 485 U.S. 58, 63 (1988).
After a thorough review of the record, we have determined that
the district court did not err in refusing to instruct the jury as
to duress. The evidence was not sufficient to allow a reasonable
jury to conclude that Hubbard was in danger of imminent bodily harm
during the entirety of his possession of a firearm on or about
August 4, 2001. See United States v. Harper, 802 F.2d 115, 118
(5th Cir. 1986); United States v. Panter, 688 F.2d 268, 272 (5th
Cir. 1982).
In view of the abundant evidence that Hubbard possessed a
firearm on or about August 4, 2001, and taking into account
Hubbard’s stipulation that the firearm in question traveled in
interstate commerce, as well as his stipulation that he had a prior
felony conviction, the evidence was sufficient to support his
conviction. See United States v. Gresham, 118 F.3d 258, 265 (5th
Cir. 1997).
In determining the amount of a fine, the district court must
consider “the need for the combined sentence to reflect the
No. 02-60923
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seriousness of the offense (including the harm or loss to the
victim and the gain to the defendant), to promote respect for the
law, to provide just punishment and to afford adequate deterrence.”
U.S.S.G. § 5E1.2(d)(1). Hubbard failed to fulfill his burden to
show that he was unable to pay a fine and that he was not likely to
become able to pay any fine. See United States v. Fair, 979 F.2d,
1037, 1041 (5th Cir. 1992); U.S.S.G. § 5E1.2(a). Accordingly, we
have determined that the district court’s imposition of a $50,000
fine was not an abuse of its “considerable discretion.” United
States v. Matovsky, 935 F.2d 719, 722 (5th Cir. 1991); see United
States v. Altamirano, 11 F.3d 52, 53-54 (5th Cir. 1993). Further,
because the district court did not adopt the findings of the
Presentence Report (PSR) with respect to a fine, and then depart
from the PSR’s recommendation, the district court was not required
to make specific findings showing that it considered the relevant
factors. See Fair, 979 F.2d at 1041.
The judgment of the district court is AFFIRMED.