UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30892
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JULIUS WARNER MARACALIN,
also known as “Big Warner”,
Defendant-Appellant.
Appeal from the United States District Court
For the Middle District of Louisiana
(CR-95-004-B-M2)
November 10, 1997
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Julius Warner Maracalin pleaded guilty to a multi-count
indictment charging him with conspiracy to possess with intent to
distribute cocaine base and distribution of cocaine base.2 The
district court sentenced him to concurrent 235-month terms of
imprisonment, to be followed by a five-year term of supervised
*
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this opinion should not be published and is not precedent except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.
2
See 21 U.S.C. § 846; 21 U.S.C. 841(a)(1); 18 U.S.C. § 2.
release. The district court also imposed a fine of $100,000.
Judge Stewart granted Maracalin leave to appeal under the Criminal
Justice Act.3
First, Maracalin argues in his brief that the district court
erred by refusing to allow him to withdraw his guilty plea prior to
the court’s acceptance of the plea agreement. In his reply brief,
however, he concedes that his argument is foreclosed by the Supreme
Court’s recent decision in United States v. Hyde4 (holding that
when the district court has accepted a defendant’s plea but
deferred accepting the plea agreement, the plea may not be
withdrawn unless the defendant shows a fair and just reason under
Fed. R. Crim. P. 32(e)). Thus, we consider his argument abandoned
and unreviewable.5
Second, Maracalin argues that his plea was not knowing and
voluntary because the district court erroneously informed him that
he had the burden of proving that he was not guilty if he chose to
proceed to trial. Even if the district court committed the alleged
error, it did not affect Maracalin’s substantial rights. On three
occasions during the plea colloquy, Maracalin stated that he
understood that it was the government’s burden to prove guilt
beyond a reasonable doubt. Under these circumstances, we cannot
conclude that the district judge’s isolated remark to the contrary
3
18 U.S.C. § 3006A
4
117 S. Ct. 1630 (1997)
5
See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.
1995); see also United States v. Olano, 507 U.S. 725, 733 (1993).
2
was a material factor in his decision to plead guilty. Because his
substantial rights were not affected by the alleged error, his
argument must fail.
Third, Maracalin argues that the district court, in violation
of Fed. R. Crim. P. 11(e), participated improperly in the plea
negotiations. Though Maracalin points to various statements made
by the district court that allegedly demonstrate improper judicial
participation, none of the complained-of statements suggests that
the court encouraged him to enter a particular plea. We find no
violation of Rule 11(e).
Fourth, Maracalin argues that his conviction and sentence
cannot stand because he received ineffective assistance of counsel.
“A claim of ineffective assistance of counsel generally cannot be
addressed on direct appeal unless the claim has been presented to
the district court; otherwise, there is no opportunity for the
development of an adequate record on the merits of that serious
allegation.”6 Although the record may be developed adequately on
the merits to resolve some of Maracalin’s ineffectiveness claims,
it is not developed adequately to resolve all of them. As such, we
decline to address the matter on direct appeal. Accordingly,
Maracalin’s motion to supplement the record on appeal with a letter
relating to this issue is denied.
Finally, Maracalin argues that the district court erred by
ordering him to pay a fine of $100,000 without first making
specific factual findings as to his ability to pay such a fine. We
6
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992)
3
have stated that “when a sentencing court adopts a PSR which
recites facts 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.”7 The sentencing
court must make findings as to the defendant’s ability to pay.8 In
this case, the PSR indicated that Maracalin would not have any
money with which he could pay a fine. We remand to the district
court with instructions to make the requisite findings as to
Maracalin’s ability to pay the fine. We note, however, that our
case law plainly states that a finding of indigence does not
necessarily preclude the imposition of a fine.9 That is, upon
remand, the district court may make specific findings that the
defendant is indigent, but nonetheless properly impose a fine.10
The defendant’s conviction and sentence are AFFIRMED. That
portion of the judgment imposing the fine is VACATED and the case
is REMANDED to the district court for further proceedings.
7
United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992)
8
United States v. Hodges, 110 F.3d 250, 252 (5th Cir. 1997)
9
United States v. Altimirano, 11 F.3d 52 (5th Cir. 1993)
10
See Hodges at 252.
4