United States v. Rubio-Hernandez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 8, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-50006 c/w No. 03-50030 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL RUBIO-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Western District of Texas USDC No. EP-02-CR-902-ALL-PRM --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

In this consolidated appeal, Daniel Rubio-Hernandez (“Rubio”),

appeals from his conviction, 55-month sentence, and $250 fine for

illegal re-entry, 8 U.S.C. § 1326, as well as from the revocation

of his supervised release. Rubio’s indictment under 8 U.S.C. §

1326, like the petition to revoke his supervised release, came

after an investigation pursuant to a traffic stop revealed that

Rubio was a deported felon.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50006 c/w No. 03-50030 -2-

Rubio first attacks his illegal re-entry conviction.

He argues that the district court erred in denying his motion

to suppress evidence obtained as a result of the traffic stop.

Evidence of Rubio’s identity, like his record as a deported felon,

is not subject to suppression. See United States v. Roque-

Villanueva, 175 F.3d 345, 346 (5th Cir. 1999). Rubio has failed to

identify any evidence obtained as a result of the traffic stop that

is subject to suppression. Rubio’s conviction under 8 U.S.C. §

1326 is accordingly AFFIRMED.

Rubio contends that the revocation of his supervised release

should be vacated because it rested on his illegal re-entry

conviction. Based on the affirmation of Rubio’s conviction under

8 U.S.C. § 1326, we likewise AFFIRM the revocation of Rubio’s

supervised release.

Rubio argues that his 55-month sentence violates due process

because it exceeds the statutory maximum sentence for the offense

charged in the indictment. Rubio acknowledges that this argument

is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he states that he seeks to preserve the issue for

possible Supreme Court review in view of Apprendi v. New Jersey,

530 U.S. 466 (2000). Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90. Rubio has not shown error on

this ground.

Rubio’s remaining argument is that the district court erred in

imposing a $250 fine. Where, as in this case, the district court No. 03-50006 c/w No. 03-50030 -3-

adopts a presentence report (PSR) showing limited or no ability to

pay a fine, the Government must come forward with evidence showing

that a defendant can, in fact, pay a fine before one can be

imposed. See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.

1992). The Government admits that no such evidence was adduced,

and the district court did not make specific findings regarding

Rubio’s ability to pay a fine. Consequently, this court cannot

uphold the district court’s imposition of the fine. See United

States v. Hodges, 110 F.3d 250, 251 (5th Cir. 1997).

The Government requests that this court modify the judgment

rather than remand the issue of the fine to the district court.

Given our determination that the fine cannot be upheld, we hereby

VACATE the $250 fine imposed on Rubio and MODIFY the district

court’s judgment accordingly. As modified herein, the judgment of

the district court is AFFIRMED.

VACATED and MODIFIED in part; and as modified, AFFIRMED.