United States v. Stephen Brum

433 F. App'x 283

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 2011
• Docket: 10-30730
• Status: Unpublished

Opinion

PER CURIAM: *

Stephen Brum appeals the district court’s imposition of a fíne of $5,000, following his guilty plea to assault by striking, beating, and wounding in violation of 18 U.S.C. §§ 113(a)(4) and 2. According to Brum, he presented evidence in his motion to modify the judgment that he could not pay the fíne imposed by the district court. As such, he contends that under the holding of United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.1992), the burden then shifted to the Government to show that he could in fact pay the fíne. He asserts that because the Government failed to do so, the district court plainly erred by imposing the fine without making specific findings regarding his ability to pay.

Because Brum failed to object to the imposition of the fine at sentencing, review is for plain error. See United States v. McElwee, 646 F.3d 328, 338-40, 2011 WL 2686447, at *5 (5th Cir. July 12, 2011)(gen-eral objection to sentence does not preserve objection to the amount of the fine); United States v. Brantley, 537 F.3d 347, 351 (5th Cir.2008). To show plain error, Brum must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Brum has not made such a showing.

Brum’s reliance on Fair is misplaced since no presentence report was prepared in his case. See United States v. Hodges, 110 F.3d 250, 252 (5th Cir.1997); United States v. Martinez, 151 F.3d 384, 396 (5th Cir.1998). At sentencing, Brum failed to present evidence of his inability to pay a fine, which the district court ordered could be paid in monthly installments once Brum was released onto supervised release. In its order denying Brum’s motion to modify the judgment, the district court stated that it would reconsider modification of its pay ment terms based upon Brum’s “actual [financial] circumstances.” The district court adequately addressed Brum’s post-judgment arguments regarding his alleged inability to pay. See McElwee, 646 F.3d at 338-40, 2011 WL 2686447, at *5 (court showed that it considered defendant’s ability to pay). Under these circumstances, there was no error. See Martinez, 151 F.3d at 396; United States v. Matovsky, 935 F.2d 719, 723 (5th Cir.1991); United States v. Altamirano, 11 F.3d 52, 53-54 (5th Cir.1993); United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir.1994). Accordingly, the judgment of the district court is AFFIRMED.

* 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.