UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41136
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBEN ANSELMO ZEA-LUNA; ALEJANDRO GUDINO-VARA,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
(M-96-CR-198-4)
September 18, 1998
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted Ruben Anselmo Zea-Luna and Alejandro Gudino-
Vara of conspiracy to possess with intent to distribute marijuana.
The district court sentenced Zea to 46 months of imprisonment and
three years of supervised release. It sentenced Gudino to 52
months of imprisonment, three years of supervised release, and
imposed a $10,000 fine. Zea and Gudino timely filed notices of
appeal. They argue that the district court erred in giving them a
two-level enhancement for obstruction of justice. Gudino also
argues that the district court erred in imposing the $10,000 fine.
*
Under 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except in the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
Neither contention has merit. We affirm.
We review the district court’s findings regarding the
obstruction of justice enhancement under the “clearly erroneous”
standard.2 The appellants contend that there was no evidence to
support the finding that they knew their families paid a bribe to
a juror sitting on their case. The district court found that
several factors pointed to Zea’s and Gudino’s indirect
participation in the bribe of the juror. With regard to Zea, the
court concluded that because of his close family relationship, his
desire to retain his attorney despite a conflict of interest, and
his attorney’s knowledge of the juror contact, Zea must have been
aware of the bribe. With regard to Gudino, the court concluded
that he was aware of the bribe because of his close relationship
with his family members and his substantial access to them during
the trial. Viewing the record in its entirety, the district
court’s account of the evidence is plausible.
We review the district court’s imposition of the $10,000 fine
for plain error because Gudino did not raise the issue before the
district court.3 “Questions of fact capable of resolution by the
district court upon proper objection at sentencing can never
constitute plain error.”4 Gudino’s contention that he has the
2
United States v. McDonald, 964 F.2d 390, 392 (5th Cir.
1992.)
3
See United States v. Maldonado, 42 F.3d 906, 909-12 (5th
Cir. 1995); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc).
4
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
2
inability to pay the $10,000 fine is a question of fact which could
have been resolved in the district court upon proper objection, and
therefore does not constitute plain error. Moreover, even if the
issue is subject to review for plain error, Gudino has not made the
required showing because he neither presented evidence at the
sentencing hearing regarding his inability to pay a fine, nor
attempted to rely upon the figures regarding his ability to pay
presented in his Presentence Report.5
AFFIRMED.
5
See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.
1992).
3