United States v. Crosslin , 134 F.3d 368 ( 1998 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-10337
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOE WESLEY CROSSLIN,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:96-CR-131-A-1)
February 10, 1998
ON PETITION FOR REHEARING
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:1
Appellant-Crosslin’s petition for rehearing is granted to the
extent and for the reasons set forth below. Our panel decision is
otherwise left undisturbed. In his petition, Crosslin correctly
points out that we erred in affirming the fine imposed by the
district court. “When a sentencing court adopts a [presentence
1
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this opinion should not be published and is not precedent except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.
investigation report] which recites facts showing limited or no
ability to pay a fine the government must then come forward with
evidence showing that a defendant can in fact pay a fine before one
can be imposed.” United States v. Fair, 979 F.2d 1037, 1041 (5th
Cir. 1992). Here, the district court adopted the presentence
investigation report. The presentence investigation report
contained evidence that the defendant could not pay. See
Presentence Investigation Report ¶ 45. The government did not come
forward with evidence to show ability to pay. And the court did
not articulate its reasons for departing from the presentence
investigation report. Under these circumstances, we cannot uphold
the fine imposed by the district court. See United States v.
Hodges, 110 F.3d 250, 251 (5th Cir. 1997).
For the foregoing reasons, Crosslin’s petition for rehearing
is GRANTED in part and DENIED in part. We VACATE Crosslin’s $5,000
fine and REMAND this case for further consideration. Crosslin’s
conviction and sentence of incarceration are otherwise AFFIRMED.