IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30786
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES KEVIN HODGES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Louisiana
(96-CR-10002-01)
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July 27, 1998
Before EMILIA M. GARZA, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This is the second time that this case has appeared before
this court. The appellant, James Kevin Hodges, now appeals the
district court’s re-imposition of a $10,000 fine against him as
part of his criminal sentence. For the reasons set forth below, we
AFFIRM.
On March 14, 1996, Hodges was indicted on one count of assault
with a sawed-off shotgun, in violation of 18 U.S.C. § 113(a)(3).
*
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should not be published and is not precedent except under the limited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.
On March 27, 1996, Hodges pleaded guilty pursuant to a written plea
agreement. At sentencing, the district court adopted the factual
findings and guideline applications contained in the Presentence
Investigation Report (PSR) and sentenced defendant to serve 27
months in prison to be followed by a three-year term of supervised
release. The court also imposed a $10,000 fine. Defendant timely
appealed his sentence.
On appeal, this court affirmed the 27-month sentence but,
because the PSI contained facts suggesting that the defendant would
have difficulty paying the fine imposed, vacated the $10,000 fine
and remanded the case to the district court for specific findings
which would satisfy the requirements of United States v. Fair, 979
F.2d 1037, 1041 (5th Cir. 1992). Specifically, the court held:
“The holding in Fair is narrow -- where a district court adopts,
and a defendant relies upon, a PSR showing limited ability to pay,
the government must come forward with evidence and the court must
make specific findings before a fine may be imposed.”
On remand, the district court held a hearing, at which Hodges
refused to testify. The government, however, presented the
testimony of the probation officer who prepared the PSI, who stated
that Hodges had previously been employed as a maintenance
supervisor, earning $26,000 per year, and as an engineering
manager, earning $31,500 per year. The probation officer further
testified that Hodges had also previously attended college classes
in air conditioning and refrigeration, electronics, and computer
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literacy. Finally, and signficantly for the purposes of this
appeal, the probation officer testified that she saw no reason why
Hodges should not be able to find employment once released.
On the basis of the testimony presented at the hearing, the
district court found that Hodges had held jobs in the past, that he
had the mental capacity to hold a job, that it was “quite likely”
that he would hold a job in the future, and that there was no
reason why he could not have an earning capacity of substance and
pay the $10,000 fine in the future. Accordingly, the district
court reimposed the $10,000 fine.
After reviewing the record, we are unable to say that these
findings of fact are clearly erroneous. See United States v.
Goodman, 914 F.2d 696, 697-98 (5th Cir.1990). In addition,
notwithstanding the fact that these findings were based, to a large
extent, on evidence contained in the original PSR, we find that the
district court’s findings complied with the scope of our previous
remand. In this respect, we note that the PSR did not simply
conclude that Hodges would have difficulty paying any fine.
Rather, the PSR continued: “However, should Mr. Hodges secure
employment upon his release from custody, the likelihood of paying
a fine will be substantially increased.” PSR ¶ 63. As noted,
after holding an evidentiary hearing, the district court
specifically found that he would likely secure employment in the
future that would enable him to pay the $10,000 fine. This finding
was based not only of Hodges’s educational and vocational
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experience, which were also contained in the PSR, but on the new
testimony of the probation officer, who testified that she saw no
reason why Hodges should not be able to find employment once
released. Such a finding clearly negates the concerns of the
previous panel -- i.e., that the district court may have imposed a
fine despite a finding in the PSI, which the district court
originally adopted, that Hodges would have difficulty paying any
fine. Moreover, we note that, to the extent that the passage of
time proves these findings erroneous, the district court expressly
indicated that it would reconsider the fine at that time.
For the reasons set forth above, we AFFIRM.
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