United States v. De La Torre, Martin , 175 F. App'x 76 ( 2006 )


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  •                                UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted March 17, 20061
    Decided April 6, 2006
    Before
    Hon. JOEL M. FLAUM, Chief Judge
    Hon. JOHN L. COFFEY, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 05-2421
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,                  Appeal from the United States District
    Court for the Northern District
    of Illinois, Eastern Division.
    v.
    No. 98-CR-898
    MARTIN DE LA TORRE,
    Defendant-Appellant.                    David H. Coar,
    Judge.
    ORDER
    Before us is defendant-appellant Martin De la Torre’s third appeal of his
    criminal sentence. On the past two occasions, we vacated De la Torre’s sentence
    and remanded to the district court for resentencing. In this appeal, De la Torre
    argues that the district court erred when it imposed a $1,000 fine at resentencing.
    1
    This successive appeal has been submitted to the panel that decided the
    original appeal. See Operating Procedure 6(b). After examining the briefs and the
    record, we have concluded that oral argument is unnecessary. Thus, the appeal is
    submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
    No. 05-2421                                                                    2
    Because the district court did not plainly err when it imposed the fine, we affirm.
    I. Background
    We assume the reader has some familiarity with the facts of De la Torre’s
    conviction as set forth in United States v. De la Torre, 
    327 F.3d 605
     (7th Cir. 2003).
    For our purposes here, we recount only the procedural history leading up to the
    present appeal. De la Torre pled guilty to conspiring to possess and distribute
    marijuana in violation of 
    21 U.S.C. § 846
    ; distributing marijuana in violation of 
    21 U.S.C. § 841
    (a)(1); and conspiring to conduct financial transactions with the
    proceeds of drug trafficking in violation of 
    18 U.S.C. § 1956
    (h). On February 2,
    2001, the district court sentenced De la Torre to 151 months in prison. Ruling on
    De la Torre’s motion to reconsider, the district court reduced the sentence to 71
    months’ imprisonment, but the court added a $1,000 fine, which it had specifically
    waived during the first sentencing hearing.
    After considering the parties’ cross appeals of the sentence, we reversed and
    remanded directing that the 151 month prison term be reinstated. De la Torre, 
    327 F.3d at 611
     (determining that Apprendi v. New Jersey, 
    530 U.S. 466
     (2000) “does
    not affect the Guideline calculations that determine the total punishment or total
    sentence of imprisonment.”). On remand, the district court sentenced De la Torre to
    151 months’ imprisonment, but the district court “remitted” the $1,000 fine. De la
    Torre again appealed his sentence and, in an unpublished opinion, we reversed and
    remanded based on Blakely v. Washington, 
    542 U.S. 296
     (2004) and United States v.
    Booker, 
    375 F.3d 508
     (7th Cir. 2004). In its fourth opportunity to sentence De la
    Torre, the district court sentenced him to 151 months’ imprisonment and imposed a
    $1,000 fine. De la Torre now appeals the imposition of the $1,000 fine.
    II. Analysis
    Because De la Torre did not object to the fine at sentencing, we review its
    imposition by the district court for plain error. United States v. Bauer, 
    129 F.3d 962
    , 964 (7th Cir. 1997). Under this standard, De la Torre must show that the
    imposition of the fine affected his substantial rights. United States v. Jaimes-
    Jamies, 
    406 F.3d 845
    , 849 (7th Cir. 2005). To make this showing, the error must be
    “palpably wrong” and likely to have resulted in a different sentence. Bauer, 
    129 F.3d at
    964 (citing United States v. Flores-Sandoval, 
    934 F.3d 346
    , 351 (7th Cir.
    1996)).
    Although De la Torre has been sentenced four times in as many years, our
    plain error review focuses on the most recent sentence mandated by the district
    court, which ordered a $1,000 fine. See United States v. White, 
    406 F.3d 827
    , 832
    (7th Cir. 2005) (when a sentence, or even part of it, is vacated and remanded to the
    district court, the district court has the authority to restructure the sentence);
    United States v. Atkinson, 
    979 F.2d 1219
    , 1223 (7th Cir. 1991) (“the effect of a
    vacation is to nullify the previously-imposed sentence” and “the district court will be
    No. 05-2421                                                                       3
    writing on a clean slate” when imposing the new sentence).
    De la Torre contends that the district court erred by (1) failing to consider
    the statutory factors set forth in 
    18 U.S.C. § 3572
    (a);2 (2) failing to adopt the facts in
    the Presentence Investigation Report (PSR); and (3) creating an inconsistent record
    in not imposing the fine at the first sentencing. The government responds that the
    district court properly sentenced De la Torre following the necessary statutory
    requirements and making the requisite factual findings. Both parties rely on our
    decision in Bauer to support their respective positions. As we recognized in Bauer,
    the United States Sentencing Guideline § 5E1.2 and 
    18 U.S.C. § 3572
    (a) provide
    factors that a district court should consider before imposing a fine. Bauer, 
    129 F.3d at 964-65
    . However, we have acknowledged that “express or specific findings
    regarding each of the relevant factors to be considered before imposing a fine are
    not required.” 
    Id. at 966
    . The imposition of a fine will be reversed for insufficient
    factual findings if the record is “unclear” as to whether the sentencing judge
    reflected upon the relevant factors. 
    Id. at 968
    . Such a sentencing ambiguity occurs
    “when the district court adopts the factual findings contained in the presentence
    report but deviates from the fine recommendation, if any, made by the United
    States Probation Office, or alternatively, if the district court declines to adopt the
    findings in the presentence report and makes no findings of its own.” 
    Id.
    De la Torre’s substantial rights were not impacted when the district court
    imposed the fine at his most recent sentencing hearing. U.S.S.G. § 5E1.2(a)
    provides that “[t]he 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.” De la Torre does not argue that he cannot pay a fine, but rather that
    the record contains inconsistences regarding the district court’s intent to impose the
    2
    The factors to be considered include: (1) the defendant’s income, earning
    capacity, and financial resources; (2) the burden that the fine will impose upon the
    defendant, any person who is financially dependant on the defendant, or any other
    person (including a government) that would be responsible for the welfare of any
    person financially dependent on the defendant, relative to the burden that
    alternative punishments would impose; (3) any pecuniary loss inflicted upon others
    as a result of the offense; (4) whether restitution is ordered or made and the amount
    of such restitution; (5) the need to deprive the defendant of illegally obtained gains
    for the offense; (6) the expected costs to the government of any imprisonment,
    supervised release, or probation component of the sentence; (7) whether the
    defendant can pass on to consumers or other person the expense of the fine; and
    (8) if the defendant is an organization, the size of the organization and any measure
    taken by the organization to discipline any officer, director, employee, or agent of
    the organization responsible for the offense and to prevent a recurrence of such an
    offense. 
    18 U.S.C. § 3572
    (a)
    No. 05-2421                                                                               4
    fine. We do not find the record of the last sentencing hearing inconsistent. The
    PSR acknowledged that De la Torre lacked income or assets but reasoned that,
    because he faced a considerable stint of incarceration, he would be eligible to enroll
    in the Inmate Financial Responsibility Program (IFRP).3 Although it would not
    allow him to pay a lump sum, the IFRP would allow De la Torre to pay the fine in
    installments. The sentencing judge adopted the factual findings of the PSR,
    specifically finding that based on his participation in the IFRP, De la Torre would
    be able to pay a fine. The district court’s factual findings and De la Torre’s sentence
    are consistent with the information contained in the PSR. Therefore, the district
    court did not plainly err when it imposed the $1,000 fine.
    III. Conclusion
    For the foregoing reasons, the judgment of the district court is AFFIRMED.
    3
    The IFRP assists inmates in fulfilling their financial obligations. 
    28 C.F.R. § 545.10
    .
    After the creation of a financial plan, money is deducted from the prisoner’s earnings in order to
    satisfy the financial obligation. United States v. Isienyi, 
    207 F.3d 390
    , 393 (7th Cir. 2000).