United States v. Hubbard

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 29, 2003
• Docket: 02-60923
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:01-CR-20-1 --------------------

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -3-

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.