United States v. Michael May ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0638n.06
FILED
No. 09-4354
Aug 29, 2011
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
MICHAEL B. MAY, )
) OPINION
Defendant-Appellant. )
BEFORE: ROGERS, McKEAGUE, Circuit Judges; DONALD, District Judge.*
McKeague, Circuit Judge. Defendant Michael B. May appeals his conviction for being a
felon in possession of a firearm, arguing that there was insufficient evidence to link him to the
firearm. May also challenges the sentence imposed, arguing that an enhancement for reckless
endangerment and $1,000 fine were improper. For the reasons that follow, we AFFIRM both the
conviction and sentence.
I. Background
On August 26, 2008, at approximately 12:30 a.m., Officer Eric Williams (“Williams”) and
Sergeant Christopher Svec (“Svec”) of the Cuyahoga Metropolitan Housing Authority (“CMHA”)
Police Department were conducting a foot patrol in the Cedar Avenue CMHA housing project. The
*
The Honorable Bernice B. Donald, United States District Judge for the Western District of
Tennessee, sitting by designation.
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USA v. May
officers noticed four men standing in a parking lot outside of one of the apartment buildings. As the
officers approached and called out to the men, the men fled. The officers pursued two of the men
who headed toward an apartment building. One of the men was wearing a gray sweatshirt, and the
other was wearing a red polo. The men entered the building and the door locked behind them. As
Williams tried to open the door, Svec stood back and watched the men climb the stairs through the
illuminated stairwell windows. Svec was able to “see a hand with a gray sweatshirt come out the
window and drop a weapon” onto a second-floor balcony, and then see the men enter a third-floor
apartment. Another officer arrived on scene with a master key, but at about the same time the
resident of the second floor apartment came down to let the officers in. Svec and the other officer
proceeded to the second floor, where Svec entered the apartment with the balcony and recovered a
loaded firearm from the balcony. Svec came back downstairs to secure the gun in his police vehicle,
and then Williams and Svec entered the building and proceeded to the third-floor apartment. The
two officers encountered the leaseholder to the apartment, Lorrie Lockhart (“Lockhart”), in the
hallway. They asked and received her permission to enter the apartment. Inside, the officers found
May in a gray sweatshirt, a juvenile in a red polo shirt, and a quantity of marijuana in the toilet that
looked like it was about to be flushed.
The officers arrested both men, and May was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). May was tried before a jury and moved for a judgment
of acquittal at the close of the Government’s case, and again after closing arguments. The district
court denied both motions. The jury ultimately found May guilty.
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Prior to sentencing, the Probation Office prepared a Presentence Investigation Report
(“PSR”). According to the PSR, Mays had a base offense level of 24, and a criminal history category
of VI. Additionally, the PSR included a two-level enhancement under U.S.S.G. § 3C1.2 for reckless
endangerment during flight based on May’s having discarded a loaded weapon. May objected to the
enhancement, but the district court denied the objection and applied the enhancement, creating a total
offense level of 26. Accordingly, May’s Sentencing Guidelines range was 120–150 months.
However, because the statutory maximum sentence for a being a felon in possession of a firearm is
10 years’ imprisonment, 120 months’ imprisonment became the applicable Guidelines range
pursuant to U.S.S.G. § 5G1.1(a). The district court imposed a 120-month prison sentence, and a
$1,000 below the Guidelines fine. This appeal followed.
II. Analysis
First, May challenges the jury verdict, arguing that there was insufficient evidence to link him
to the discarded gun. Second, May challenges the sentence imposed, arguing that the two-level
enhancement under U.S.S.G. § 3C1.2 was improper, and that the $1,000 fine was unreasonable. We
will address these arguments in turn.
A. The Sufficiency of the Evidence
We conduct de novo review of a district court’s denial of a motion for acquittal for
insufficiency of the evidence. United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010). “A
defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v.
Abboud, 438 F.3d 554, 589 (6th Cir. 2006). “‘The relevant question . . . is whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Graham,
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622 F.3d at 448 (quoting United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007)). In
answering this question, we view “the evidence in ‘a light most favorable to the prosecution, giving
the prosecution the benefit of all reasonable inferences from the testimony.’” Id. (quoting
McCauliffe, 490 F.3d at 537). “We afford the same weight to both circumstantial and direct
evidence,” id. (citation omitted), and “[c]ircumstantial evidence alone is sufficient to sustain a
conviction,” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010). “We may not weigh the
evidence presented, consider the credibility of witnesses, or substitute our judgment for that of the
jury.” Graham, 622 F.3d at 448 (citation and internal quotation marks omitted). Challenges to
witness credibility at this stage “‘would invade the province of the jury as the sole finder of fact in
a jury trial.’” Id. at 449 (quoting United States v. Bearden, 274 F.3d 1031, 1039 (6th Cir. 2001)).
Indeed, an attack on witness credibility is not a proper challenge to the sufficiency of the evidence,
but rather an improper challenge to the quality of the evidence. See id. (citation omitted).
We look first to the essential elements of the crime. “‘To obtain a conviction pursuant to
§ 922(g)(1), the government must prove beyond a reasonable doubt: (1) that the defendant has a prior
conviction for a crime punishable by imprisonment for a term exceeding one year; (2) that the
defendant thereafter knowingly possessed the firearm and ammunition specified in the indictment;
and (3) that the possession was in or affecting interstate commerce.’” United States v. Schreane, 331
F.3d 548, 560 (6th Cir. 2003) (quoting United States v. Daniel, 134 F.3d 1259, 1263 (6th Cir. 1998)).
May only argues that the Government failed to prove the second element, because “there was no
credible evidence” to link May to the gun that was recovered on the balcony. Specifically, May
contends that the officers’ testimony was inconsistent on several key issues: (1) whether both officers
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initially pursued the two males; (2) whether Williams was present when the gun was discarded; and
(3) whether the officers needed a key to gain access to Lockhart’s apartment. Furthermore, May
argues that the officers’ testimony that they could see May drop the gun on the balcony, and see the
men enter the third floor apartment was “patently incredible” because their views were obstructed.
The evidence that linked May to the firearm shows that both officers testified that they saw
two men, one wearing a red shirt, and one wearing a gray shirt, run to and enter the apartment
building. Svec’s description was even more specific; he testified that one male was “anywhere
between 5'8 to 5'10 tall, about 150 to 170,” wearing a gray sweatshirt with blue jeans, and that the
other male “had a red polo shirt on,” and “was about 5'3, 5'4 . . . maybe about 120 pounds.” R.60,
Trial Tr., at 72–73. Both officers testified that they pursued the men to the apartment building, and
Svec was able to watch the same men climb the stairs through the illuminated stairwell. As the men
were climbing the stairwell, Svec testified that he saw the man in the gray shirt reach out of one of
the stairwell windows and drop a firearm onto the balcony of a second floor apartment. Svec also
testified that he was able to watch the men reach the third floor and enter an apartment
notwithstanding the bars over the windows and the dirty glass. Id. at 75. The officers further
testified that after recovering the firearm, they encountered Lockhart outside of the third-floor
apartment. Svec testified that he asked her if two men ran into her apartment, to which Lockhart
replied that two friends had recently come back from the store. Id. 78. The officers testified that
after receiving permission from Lockhart to enter the apartment, and once they were inside, they
found a male, who was about 5'3 and wearing a red polo shirt, in the living room. Id. at 25.
Moreover, they saw May, who was about 5'9 and wearing a gray sweatshirt, leaving the bathroom.
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Inside the bathroom, Svec testified that he found a “[l]arge amount of loose marijuana that was in
the toilet that appeared to [be] ready to be flushed or discarded.” Id. at 80.
As to merits of May’s argument, May’s challenges to the consistency of the officers’
testimony are not well taken because they are improper challenges to the credibility of the officers
and the quality of the evidence. See Graham, 622 F.3d at 449. Furthermore, even assuming for a
moment that there were some inconsistencies with regard to some of the officers’ testimony, we do
not see how the inconsistencies noted by May affect the sufficiency of the evidence because there
were no inconsistencies as to the officers’ testimony on the key facts that linked May to the discarded
firearm.
We may, however, consider May’s argument that it was physically impossible for Svec to
observe the two males climbing the stairs, and to see an arm with a gray sweatshirt drop a firearm
on the balcony, because we do not “blindly accept implausible stories swallowed by the jurors” that
are “beyond the realm of physical possibility.” United States v. Caraway, 411 F.3d 679, 682–83 (6th
Cir. 2005). May’s defense counsel cross examined Svec on this issue, using photographs taken
during daylight hours as exhibits. In particular, counsel used Exhibit NN, a photograph that
according to Svec’s testimony was taken from a vantage point that was at least close to where he was
standing when he observed the men climbing the stairs. R.60, Trial Tr., at 90–91. In this
photograph, despite some obstructions, we can clearly see an individual on the stairwell between the
second and third floors. The photograph also leaves little doubt that it was possible to see someone
reach an arm out the window to drop something on the balcony from this vantage point. Moreover,
Svec testified that he believed his view was better at night because it was dark outside and the
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stairwell was illuminated. R.60, Trial Tr., at 93. Thus, the evidence was more than sufficient for
a reasonable jury to conclude that Svec: (1) saw the two males enter the apartment building; (2) saw
the male with a gray sweatshirt drop a firearm out the second story window; and (3) watched the two
males climb the stairwell to the third floor.
This leaves us with whether Svec could see the two males enter Lockhart’s apartment. In this
particular apartment building, once an individual reaches the third-floor landing there are three
apartment doors—one to the left, one directly ahead, and one to the right—without a hallway.
Because the building only had three stories, there were only three places the two males could have
entered once they reached the landing. Svec testified that he had no problem seeing the individuals
run into Lockhart’s apartment. R.60, Trial Tr., at 107. The photograph that was taken from Svec’s
approximate vantage point does not provide us with what would have been Svec’s view of the third
floor windows, so it is irrelevant as to this question. Instead, May relies on photographs taken from
the vantage point of an individual who is looking through the windows from the third-floor landing.
But these photos are not helpful because, as Svec testified, they provide an entirely different line of
sight. Thus, there is no evidence that would lead us to conclude definitively that it was “beyond the
realm of physical possibility,” Caraway, 411 F.3d at 683, for Svec to see which apartment the men
entered when they reached the third-floor landing.
Furthermore, even assuming that Svec could not see which apartment the three men entered,
there was strong evidence linking May to the gun, despite May’s attempt to pile coincidence upon
coincidence. When the officers encountered Lockhart on the landing, she told them that two men
had recently entered her apartment. Perhaps, that was mere coincidence, but after Lockhart let the
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officers inside, the officers encountered two men who fit the exact description of the two men that
Svec watched climb the stairwell. It is possible, though doubtful, that in the middle of the night there
were two other men in one of the other two apartments matching the same description, but the fact
that May appeared to be flushing marijuana down the toilet—an act that provides a strong indication
that May believed the officers were searching for him—removes any remaining doubt that May was
the man who discarded the firearm.
In any event, viewing all of the evidence in the light most favorable to the government, a
rational trier of fact could conclude that Svec saw May drop the firearm. It makes no difference that
there was no physical evidence such as a fingerprint or DNA linking May to the gun, see Graham,
622 F.3d at 448, and even if Svec could not see which of the third-floor apartments the two males
entered, “‘[c]ircumstantial evidence alone is sufficient to sustain a conviction,’” Wettstain, 618 F.3d
at 583. In short, May has not carried the heavy burden necessary to demonstrate that there was
insufficient evidence to convict him, and we affirm the conviction.
B. Sentencing Issues
We review a district court’s sentencing determinations for procedural and substantive
reasonableness under the abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51
(2007). Furthermore, we accept the district court’s factual findings unless they are clearly erroneous.
United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008). “A factual finding is clearly erroneous
when the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Id. at 540 (citation and internal quotation marks omitted). However,
we conduct de novo review of the district court’s legal conclusions. Id.
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1. The Enhancement for Reckless Endangerment
Next, May argues that the district court erred by imposing a two-level enhancement for
reckless endangerment during flight. Under the Guidelines, the enhancement is appropriate “[i]f the
defendant recklessly created a substantial risk of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. Thus, for the enhancement
to apply, we have noted that the
government must show that the defendant (1) recklessly, (2) created a substantial risk
of death or serious bodily injury, (3) to another person, (4) in the course of fleeing
from a law enforcement officer, (5) and that this conduct occurred during the
commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense.
United States v. Woods, 604 F.3d 286, 292–93 (6th Cir. 2010) (citation omitted). The Guidelines
define “reckless” as conduct “in which the defendant was aware of the risk . . . and the risk was of
such a nature and degree that to disregard that risk constituted a gross deviation from the standard
of care that a reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4 cmt. n.1;
U.S.S.G. § 3C1.2 cmt. n.2. “‘While the question of what constitutes endangerment is a mixed
question of law and fact, it is highly fact-based. Therefore, significant deference to the district court
is required.’” Woods, 604 F.3d at 293 (quoting United States v. Hazelwood, 398 F.3d 792, 796 (6th
Cir. 2005)); see also United States v. Wright, 19 F. App’x 230, 233 (6th Cir. 2001) (“Whether a
defendant engaged in reckless endangerment in the process of flight is a fact-specific inquiry
reviewed for clear error.”).
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Here, the district court considered the applicability of the enhancement by first discussing
whether the evidence presented supported the enhancement. The district court noted that the firearm
was discarded in a housing project, “where children, teenagers or others are likely to be.” Sent. Tr.
at 9. Further, the court noted that there was at least one woman in the apartment connected to the
balcony where the firearm was discarded, and that the woman entered the balcony after May tossed
the firearm. Id. at 10. Thus, the court concluded:
[W]here an individual discards a firearm in the vicinity of an apartment complex,
where pedestrian traffic, I think we can make that finding by a preponderance of the
evidence, that children and teenagers are likely to reside, that this creates a possibility
that a child or teen or another individual, I don’t think it matters if it’s just children
and teenagers as such, but where children and teenagers are likely to reside and may
recover the weapon.
In this case, we had a loaded firearm, and discarding a loaded firearm, like in the
instant case, did recklessly create a substantial risk of death or serious bodily injury
to another.
Id. at 11.
May argues that this enhancement is “typically—and most appropriately—applied in cases
of high speed automobile chases in residential areas, physical altercations with officers involving
weapons, and when discharging firearms while fleeing.” Furthermore, May notes, there was no
evidence that children or teenagers could have recovered the firearm, or that the firearm could have
accidently discharged. Thus, May contends, it was clear error to conclude that discarding a firearm,
which was quickly recovered, “onto a locked, second-story balcony of an apartment with a single
resident,” recklessly created a substantial risk of death or serious bodily injury to another. The
Government responds that it is of no consequence that the firearm was quickly recovered because
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such a recovery does not affect the conclusion that May’s decision to discard the firearm was
reckless. Further, the Government argues that the district court’s finding that the firearm was
discarded in a densely-populated area, creating a risk that someone else might recover the loaded
firearm, was enough to support a finding that May recklessly created a substantial risk of death or
serious bodily injury. Additionally, the Government contends that “the firearm could have
discharged when it struck the concrete floor.”
To begin, it would be inappropriate for us to uphold this enhancement based on the argument
that May created a risk of the firearm discharging for two reasons. While we have upheld the
application of this enhancement based on the risk created by a defendant who threw a cocked and
loaded firearm, see United States v. Howard, 301 F. App’x 446, 448–49 (6th Cir. 2008) (noting that
“[t]he risk [of discharge] created by throwing a cocked and loaded gun is obvious), the record does
not indicate that the district court considered this as a basis for applying the enhancement.
Furthermore, and unlike the firearm in Howard, there is no indication in the record that May’s
firearm was actually cocked when he tossed it onto the balcony.
Still, we cannot say that the district court committed reversible error in enhancing May’s
sentence. Certainly, it was reckless to discard a loaded firearm in a public-housing complex where
it would likely be found by someone because such conduct is a “gross deviation from the standard
of care that a reasonable person would exercise.” Moreover, because it was possible that someone,
whether an adult or child, would recover and discharge the firearm, May created a risk of death or
serious bodily injury. The closer question is whether the risk was “substantial.” Looking to our
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cases, however, we have previously found “no persuasive argument to hold that the risk created by
throwing a loaded gun near other people is not ‘substantial,’” even when it is done “in front of police
officers” and with no children present. Howard, 301 F. App’x at 449 (citing United States v. Brown,
314 F.3d 1216 (10th Cir. 2003)) (internal quotation marks omitted); see also United States v. Allen,
51 F.3d 273, 1995 WL 140837, at *4 (6th Cir. 1995) (unpublished) (holding that discarding a gun,
whether loaded or unloaded in an area where it could easily be recovered was reckless
endangerment). We are not alone. Other circuits have held that “simply leaving a loaded weapon
in a public place” can warrant the enhancement. United States v. Rogers, No. 10-2849, 2011 WL
2144498, at *3 (7th Cir. June, 1, 2011) (unpublished) (“[H]e discarded a loaded revolver in a
residential neighborhood at night, creating a substantial risk that someone would find it and get
hurt.”); see also United States v. Lard, 327 F.3d 551, 553 (7th Cir. 2003) (noting that discarding a
weapon can amount to reckless endangerment when it is accessible by other people); Brown, 314
F.3d at 1221 (holding that discarding a loaded gun in an area with children and other bystanders
constituted reckless endangerment); United States v. Jefferson, 58 F. App’x 8, 10 (4th Cir. 2003)
(noting that discarding a loaded gun could constitute a substantial risk of injury to the community).
Further, we have held that the fact that the weapon was quickly recovered by the police does not alter
this calculus because the defendant still created “a risk that the weapon could be found or otherwise
utilized by another individual.” Howard, 301 F. App’x at 449; see also Allen, 1995 WL 140837, at
*4 (“[T]he fact that the police retrieved the gun before [anyone else recovered it] did not erase the
creation of a substantial risk.”).
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Here, the district court found that the loaded firearm was discarded in a place where someone
could recover and discharge the weapon. May has not contradicted that factual finding. While
May’s conduct may not have been as severe as is typical for this enhancement, in light of these
cases, and the significant deference that we afford to the district court’s determination, we cannot
say that the district court erred in concluding that May’s conduct recklessly created a substantial risk
of death or bodily harm. Accordingly, we affirm the district court’s enhancement for reckless
endangerment.
2. The $1,000 Fine
Next, May challenges the district court’s imposition of a $1,000 fine. According to the
Guidelines, the district court “shall impose a fine in all cases, except where the defendant establishes
that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a). The
Guidelines range for an offense level of 26 fine is $12,5000–$125,000. The defendant has the
burden of demonstrating that he is unable to pay a fine, United States v. Ukomadu, 236 F.3d 333,
340 (6th Cir. 2001), and to determine if the defendant is able to pay, the district court must assess
“(1) the defendant's income and earning capacity, (2) her financial resources, (3) the burden on the
defendant and her dependents, (4) whether restitution is ordered and the amount of restitution, (5)
the need to deprive the defendant of illegal gains, and (6) the need to promote respect for the law,”
United States v. Jackson-Randolph, 282 F.3d 369, 387 (6th Cir.2002) (citing 18 U.S.C. § 3572(a);
U.S.S.G. § 5E1.2(d)). We review the district court’s imposition of a fine for abuse of discretion,
United States v. Blackwell, 459 F.3d 739, 770 (6th Cir. 2006). However, the district court’s
determination regarding the defendant’s ability to pay a fine is a factual finding that is subject to
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clear error review. United States v. Stone, 218 F. App’x 425, 439–440 (6th Cir. 2007) (citing United
States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990)). Although we have yet to decide whether the
district court must make explicit findings regarding the consideration of the factors outlined above,
“we have indicated that detailed findings are not necessary where it can be inferred that the district
court considered the defendant’s ability to pay and other factors required by law.” United States v.
Powell, NO. 09-6177, 2011 WL 1930406, at *9 (6th Cir. May 20, 2011) (citing United States v.
Tosca, 18 F.3d 1352, 1354–55 (6th Cir. 1994)).
May argues that the district court abused its discretion by: (1) failing to articulate a sufficient
basis to impose a fine; (2) failing to adequately explain the basis for the amount of the fine; and (3)
failing to justify the requirement that the fine be paid in a single lump sum. We see no reason to
decide the question of whether a district court must make explicit findings on the record in imposing
a fine because we think that May’s arguments fail regardless.
The district court imposed the fine in this case immediately after discussing the applicable
18 U.S.C. § 3553(a) sentencing factors. The district court’s § 3553(a) analysis included emphasis
on May’s “serious and significant record for an individual of [his] age,” Sent. Tr., at 20, and the fact
that many of the crimes on his record were committed either while he was on supervised release or
immediately after release from prison, id. at 20–21. The district court emphasized that a strong
punishment was necessary under the “totality of the circumstances . . . to meet the sentencing goals
of punishment, deterrence and safety to the community.” Id. at 22. Further, the district court
stressed the need for May to take advantage of “treatment for substance abuse, and also educational
and vocational training,” because of May’s lack of education and working experience. Id. at 21–22.
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Immediately after imposing the maximum sentence allowed by law, the district court discussed the
imposition of a fine:
Although a fine is not recommended in this case because the defendant lacks the
ability to pay a fine, and because of the length of the prison sentence, I think a non-
guideline fine is appropriate. It is time for Mr. May to step up to the plate, and he can
earn money through the Bureau of Prisons financial responsibility program. So the
court is going to impose a fine of $1,000.
Also, the defendant must pay a special assessment of $100, which is due and payable
immediately. The fine is also due and payable immediately, but any amount that is
not paid in full shall be part of his supervision.
Sent. Tr., at 23–24.
This record shows that the district court considered a number of factors in deciding to
impose a fine. First, May’s contention that “the district court did not demonstrate any consideration
of Mr. May’s financial capacity” is patently wrong because the district court clearly recognized that
May lacked the ability to pay a fine within the Guidelines range. Further, the district court found that
May would be able to pay a smaller amount, by earning money while in prison, and on supervised
release. Considering May’s ability to earn income in prison and upon release was not improper
because “[c]urrent assets are not determinative of an ability to pay a fine.” United States v. Stone,
218 F. App’x 425, 440 (6th Cir. 2007) (citing United States v. Perez, 871 F.2d 45, 48 (6th Cir.
1989)). Additionally, we can fairly infer that the district court imposed the fine to promote respect
for the law and cause May to “step up to the plate” based on the court’s discussion of May’s criminal
history, young age and need to develop skills. May has not identified any other relevant factors that
the district court failed to discuss, and we see no issue with the district court’s decision to require
immediate payment of the fine, but to allow May to pay the fine over time if he is unable to do so.
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In short, the indicia of the court’s consideration of May’s ability to pay the fine, and the
reasons for imposing the fine, are sufficient to show that the district court did not abuse its
discretion, “especially because [May] did not request more specific findings . . . or carry [his]
burden of putting forth evidence that [he] would not be able to pay [his] fine under the term the court
specified.” United States v. Woods, 367 F. App’x 607, 614 (6th Cir. 2010) (citing United States v.
Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994)). Accordingly, we hold that the district court did not
abuse its discretion in imposing a $1,000 fine.
III. Conclusion
For these reasons, we AFFIRM May’s conviction and the sentence imposed.
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