F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 13 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-5126
v. D.C. No. 02-CR-50-P
(N.D. Oklahoma)
KENNETH RAY ARMSTRONG,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In a three-count indictment filed on March 7, 2002, appellant Kenneth Ray
Armstrong was charged with possession of an unregistered firearm in violation of
26 U.S.C. §§ 5861(d) and 5871; possession of a firearm while being an unlawful
user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(6); and possession of stolen explosive material in violation of 18 U.S.C.
§§ 842(h) and 844(a). Armstrong pleaded guilty to all three counts and a
presentence investigation report (“PSR”) was prepared prior to sentencing.
Armstrong raised no objections to the PSR and the district court sentenced him to
a fifty-seven month term of incarceration. In addition, the district court imposed
a $5500 fine pursuant to § 5E1.2(c)(3) of the Sentencing Guidelines and a $300
special assessment pursuant to 18 U.S.C. § 3013. Armstrong then filed a timely
notice of appeal.
The only issue Armstrong raises on appeal is a challenge to the imposition
of the $5500 fine. Because Armstrong failed to object to the imposition of the
fine at sentencing, this court reviews the district court’s determination only for
plain error. See United States v. Ballard , 16 F.3d 1110, 1114 (10th Cir. 1994).
“Under the plain error standard, we will not review the district court’s factual
findings relating to sentencing, but will review for particularly egregious or
obvious and substantial legal error, which our failure to consider would result in
a miscarriage of justice.” Id. (quotations omitted).
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Section 5E1.2(a) of the Sentencing Guidelines requires the district court to
impose a fine on an individual defendant “except where the defendant establishes
that he is unable to pay and is not likely to become able to pay any fine.”
U.S.S.G. § 5E1.2(a). Accordingly, it was Armstrong’s burden at sentencing to
establish both a present and future inability to pay. See id. Armstrong argues
that the district court committed plain error because the facts before the court at
sentencing demonstrated that he has no assets or income and, thus, he has no
present ability to pay the fine. He further argues that the facts indicated that he
has no future ability to pay because he is facing lengthy federal and state prison
sentences.
When calculating the amount of a fine, the district court must consider the
factors set forth in § 5E1.2(d) of the Sentencing Guidelines. See U.S.S.G. §
5E1.2(d). The district court, however, is not required to make specific findings
on the record. See United States v. Nez, 945 F.2d 341, 343 (10th Cir. 1991).
Rather, the record must simply reflect that the court considered the factors before
imposing the fine. See id.
Here, the record clearly demonstrates that the district court considered the
relevant factors, including Armstrong’s ability to pay. Before imposing the fine,
the court specifically stated that it accepted the facts set forth in the PSR for
sentencing purposes. The PSR contained information indicating that Armstrong
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is thirty-six years old and in good health with no history of mental or emotional
problems. He attended vocational school and was trained to use machine tools.
His employment history included various blue-collar jobs. The PSR further
indicated that Armstrong may be able to pay a reduced fine during his term of
incarceration if he is employed through the Bureau of Prisons’ Inmate Financial
Responsibility Program. The court then stated, “The Court finds that the
defendant does have the ability to pay a reduced fine, one below the low end of
the applicable fine range.” See U.S.S.G. § 5E1.2, cmt. n.3 (permitting the
sentencing court to impose a fine below the applicable fine guideline range).
Armstrong argues that the district court committed plain error because the
record also demonstrated that, at the time of sentencing, he had no assets, had not
been employed in more than one year, and faced the possibility of a lengthy state
term of incarceration after his release from federal prison. A defendant’s
indigence at the time of sentencing, however, does not preclude a court from
imposing a fine. See United States v. Klein , 93 F.3d 698, 706 (10th Cir. 1996).
Further, even if this court assumes that Armstrong adequately established a
present inability to pay a fine, nothing in the record indicates that he established
a future inability to pay. The only evidence before the district court supporting
Armstrong’s argument, is counsel’s statement to the court at the sentencing
hearing that state charges were pending against Armstrong and that he faced the
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possibility of additional state incarceration. It was not plain error for the district
court to reject Armstrong’s speculative assertion that he will likely be convicted
and incarcerated on the pending state charges, thereby rendering him incapable of
seeking employment after his release.
The district court did not commit plain error when it imposed the $5500
fine. Accordingly, Armstrong’s sentence is affirmed .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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