United States v. Espinoza-Cartagena

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4365
PEDRO ESPINOZA-CARTAGENA,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-00-229)
Submitted: December 20, 2001
Decided: January 15, 2002
Before WIDENER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
Karen L. Bleattler, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
2 UNITED STATES v. ESPINOZA-CARTAGENA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pedro Espinoza-Cartagena pled guilty without benefit of a plea
agreement to illegally reentering the United States after he had been
deported, 8 U.S.C.A. § 1326(a)(1), (b)(1) (West 1999). He was sen-
tenced to a term of thirty months imprisonment, three years super-
vised release, and a $500 fine. Espinoza-Cartagena’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising two issues but stating that, in his view, there are no meritori-
ous issues for appeal. Espinoza-Cartagena has been notified of his
right to file a pro se supplemental brief, but has not filed one. We
affirm the conviction and sentence.
Counsel first suggests that the district court may have erred in sen-
tencing Espinoza-Cartagena at the top of the guideline range of 24-30
months. However, as counsel acknowledges, the district court’s deci-
sion as to what sentence to impose within a correctly calculated
guideline range is not reviewable. United States v. Jones, 18 F.3d
1145, 1150-51 (4th Cir. 1994). Next, counsel addresses the district
court’s failure to make findings concerning the burden a fine would
impose on Espinosa-Cartagena’s family. When deciding whether to
impose a fine, the district court is required to consider, among other
things, the defendant’s income, financial resources, and earning
capacity, as well as the burden that a fine might impose on any of his
dependents. 18 U.S.C.A. § 3572(a)(2) (West 2000). The district court
should make specific findings concerning these factors. United States
v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). However, a district
court may satisfy these requirements if it adopts a presentence report
that contains adequate factual findings to allow effective appellate
review of the fine. Id. Because Espinoza-Cartagena did not object to
the fine in the district court, the district court’s decision is reviewed
for plain error. Fed. R. Crim. P. 52(b); Castner, 50 F.3d at 1277-78.
UNITED STATES v. ESPINOZA-CARTAGENA 3
In this case, the presentence report established that Espinoza-
Cartagena had no financial obligations or dependents who would
experience hardship if a fine were imposed. Moreover, the district
court found that Espinoza-Cartagena could pay a modest fine through
the Bureau of Prisons’ Inmate Financial Responsibility Program. In
these circumstances, and because the fine imposed was a relatively
minor one, we do not find that the district court’s failure to make spe-
cific findings requires resentencing. See United States v. Taylor, 984
F.2d 618, 622 (4th Cir. 1993).
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. This court requires that counsel inform her client, in writ-
ing, of his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed, but coun-
sel believes that such a petition would be frivolous, then counsel may
move this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED