IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41378
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FERNANDO SILVA-ACEVES
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CR-135-1
--------------------
August 15, 2000
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Fernando Silva-Aceves (“Silva”) appeals his conviction and
sentence for possession with the intent to distribute marijuana,
in violation of 21 U.S.C. § 841(a). He argues that the evidence
was insufficient to support his conviction, specifically, that it
was insufficient to show that he had knowledge of the marijuana
discovered in his tractor-trailer.
The evidence demonstrated that Silva owned the trailer in
which the marijuana was discovered; that he had been in
continuous possession of it; that he was extremely nervous when
*
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that this opinion should not be published and is not precedent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.
No. 99-41378
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stopped by Border Patrol agents; that his trailer had been
obviously altered and equipment which could have assisted in the
alterations was found in the cab of his truck; that receipts
recovered from his cab conflicted with the entries in his
official log book; that most of his time on the day the marijuana
was discovered was unaccounted for; and that he had misinformed
the contractor for whom he was working regarding the availability
of his truck on that date, leading to the inference that the
marijuana was loaded at that time. Thus, viewed in the light
most favorable to the prosecution, the evidence was sufficient to
demonstrate Silva’s guilty knowledge. See United States v.
Casilla, 20 F.3d 600, 606 (5th Cir. 1994); United States v.
Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990); see also Jackson
v. Virginia, 443 U.S.307, 319 (1979).
Silva also challenges his sentence, arguing that the 105-
month prison term was excessive, imposed in retaliation for his
having exercised his constitutional right to a jury trial. His
true argument is that he should have been sentenced instead to
the lowest end of the applicable guidelines range and that
anything higher was excessive. However, there is no authority by
which a defendant may challenge where his sentence fell within a
properly-calculated guidelines range. See United States v.
O’Banion, 943 F.2d 1422, 1431 (5th Cir. 1991); cf. United States
v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993); United
States v. Sullivan, 895 F.2d 1030, 1032 (5th Cir. 1990).
Silva also challenges the $10,000 fine imposed by the
district court, asserting that it was also imposed in retaliation
No. 99-41378
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for his having exercised his right to a jury trial. His
assertion that a fine was not permitted is clearly incorrect;
both the guidelines and the statute of conviction required the
district court to impose a fine, absent evidence of his inability
to pay. See U.S.S.G. § 5E1.2(a); 21 U.S.C. § 841(b)(1)(B).
Although the district court stated that a fine was appropriate to
reimburse the Government for its trial expenses, its reasons for
imposing the fine are irrelevant to the question whether the
imposition of the fine was proper. See § 5E1.2(a). To the
extent Silva argues that the district court erred in considering
the prosecution’s costs in determining the amount of the fine
imposed, the error, if any, was harmless because the fine imposed
was actually $5,000 less than the minimum required under the
relevant guidelines range. See §§ 5E1.2(c)(3) and (d).
Silva alternatively argues that the fine was improper
because he is unable to pay. The PSR stated that Silva had the
assets to pay the fine, the district court specifically found
that his assets were sufficient, and Silva did not present any
proof of his inability to pay. Thus, the district court’s
finding that he was able to pay the fine was not clear error.
See United States v. Martinez, 151 F.3d 384, 396 (5th Cir.),
cert. denied, 525 U.S. 1031 (1998) and 525 U.S. 1085 (1999);
O’Banion, 943 F.2d at 1431; § 5E1.2(d) and (e). Silva asserts
that using his assets to pay his fine would be unduly burdensome
to his family. Under the guidelines, the district court should
consider the financial burden a fine imposes on a defendant’s
dependents, and, if it is unduly burdensome, the court may lessen
No. 99-41378
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or waive the fine. §§ 5E1.2 (d)(3) and (e). However, “[t]he
clearly enunciated purpose of a fine is a punitive sanction, and
it is not an abuse of discretion to impose a fine that is likely
to constitute a significant financial burden.” United States v.
Matovsky, 935 F.2d 719, 722 (5th Cir. 1991). The fine imposed
was not unduly burdensome since it was significantly less than
the guidelines minimum and since Silva’s family will retain in
excess of $50,000 from the sale of his assets, the majority of
their value, even after payment of the fine. See § 5E1.2(e).
The district court’s imposition of a $10,000 fine was not error.
See Martinez, 151 F.3d at 396.
AFFIRMED.