United States v. Jose Pacheco-Alvarado

Case: 13-31083 Document: 00512986527 Page: 1 Date Filed: 03/30/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 13-31083 March 30, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff – Appellee,
v.

JOSE ROBERTO PACHECO-ALVARADO, also known as Jose Roberto
Alvarado, also known as Jose Robert Alvarado-Alvarado,

Defendant – Appellant.

***************

No. 14-30478

UNITED STATES OF AMERICA,

Plaintiff – Appellee,
v.

CESAR DE LA CRUZ, also known as Cholo de la Cruz, also known as
Benjamin Espino-Montoya, also known as Rafael Villanueva,
also known as Angel Espino, also known as Antonio Deltoro Lopez,

Defendant – Appellant.

Appeals from the United States District Court
for the Eastern District of Louisiana

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
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Nos. 13-31083 & 14-30478
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this consolidated appeal Jose Pacheco-Alvarado and Cesar de la Cruz
challenge sentences of fines imposed by a district court. De la Cruz also
challenges as unreasonable his above-guidelines-range sentence of
imprisonment. We AFFIRM Pacheco-Alvarado’s sentence. We AFFIRM de la
Cruz’s sentence in part and REMAND in part for the limited purpose of
correcting a clerical error in the written judgment.
I.
Pacheco-Alvarado pled guilty to one count of illegal reentry in violation
of 8 U.S.C. § 1326(a). Pursuant to the United States Sentencing Guidelines
(“Guidelines”), his presentence report (“PSR”) assigned a total offense level of
10 and a criminal history category of III. It stated that he was subject to a
mandatory special assessment of $100; 1 a statutory maximum fine of
$250,000; 2 and a Guidelines fine range of $2,000 to $20,000. 3
In a separate proceeding before the same judge, de la Cruz pled guilty to
four counts of knowingly and intentionally distributing a controlled substance
in violation of 21 U.S.C. § 841(a)(1) and one count of being an alien illegally
and unlawfully in the United States who knowingly possesses a firearm in
violation of 18 U.S.C. § 922(g)(5). His PSR assigned a total offense level of 15
and a criminal history category of I, which produced a Guidelines
imprisonment range of 18 to 24 months. The PSR stated that de la Cruz was
subject to a mandatory special assessment of $100 for each of the five counts
of conviction; 4 statutory maximum fines of $1,000,000 for one of the counts, 5

1 18 U.S.C. § 3013.
2 Id. at § 3563(a).
3 U.S.S.G. § 5E1.2(c)(3).
4 18 U.S.C. § 3013.
5 21 U.S.C. § 841(b)(1)(C).

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Nos. 13-31083 & 14-30478
$500,000 for one of the counts, 6 $250,000 each for two of the counts, 7 and
$250,000 for the remaining count; 8 and a Guidelines fine range of $4,000 to
$1,500,000. 9
In each case the PSR concluded, based on an examination of available
financial records and an independent investigation into the defendant’s
employment, vocational, and educational history, that the defendant had no
assets—no ownership of vehicles, property, or any other tangible assets—and
no monthly income. Both PSRs stated that “it does not appear that the
defendant has the ability to pay a fine.” The district court adopted the
statements in each PSR as its findings of fact. Nevertheless, the district court
imposed a fine on each defendant—$2,500 for Pacheco-Alvarado and $5,000 for
de la Cruz—with a monthly payment schedule set at one-third of the
defendant’s prison earnings, conditional on the prisoner’s being allowed to
work while in prison. The court waived the interest requirement for each fine
and pronounced identical conditions for both fines at sentencing:
If the defendant is placed by the Bureau of Prisons at a facility
where he can work and receive monetary compensation for that
work during his term of imprisonment, payment of the fine shall
be required at a monthly rate of at least one-third of any such
earnings.

Then beginning 60 days from the date that the defendant is
released from custody, if he is not removed from the United States
upon his release from prison, or if he reenters the United States
following deportation, any unpaid balance shall be paid at a
monthly rate calculated to ensure that the entire unpaid amount
of the fine has been paid at the time his term of supervised release
is completed. Additionally, the monthly installment payment is

6 Id. at § 841(b)(1)(E).
7 Id. at § 841(b)(1)(D).
8 18 U.S.C. § 3571(b)(3).
9 U.S.S.G. § 5E1.2(c)(1) & (4)(A).

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subject to increase or decrease depending on the defendant's
ability to pay.

In imposing a fine, the Court recognizes that the defendant
presently has limited financial means. If the defendant is placed
at a Bureau of Prisons facility where he can work and receive some
monetary compensation for that work while he is incarcerated,
however, a portion of those earnings should be dedicated to
payment of the fine.

Additionally, considering the defendant's reported prior work as [a
contractor, in Pacheco-Alvarado’s case, and a day laborer, in de la
Cruz’s case], and as a farmer on his family farm, and that he is
presently only [24 years of age, in Pacheco-Alvarado’s case, and 42
years of age in de la Cruz’s case,] with no reported physical or
mental health problems precluding gainful employment, the Court
is unaware of any reason that he should not be able to pay the
remainder of the fine amount in monthly installments upon his
release from prison if for some reason he is not removed from the
United States upon release, or if he later reenters the United
States after being removed.

Although the district court orally pronounced a monthly schedule set at one-
third of each defendant’s wages, in the written judgment of conviction for de la
Cruz the court included conflicting special instructions, which required
payment “at a monthly rate of at least 1/2 of any such earnings.” The written
judgment for Pacheco-Alvarado was consistent with the court’s oral
pronouncement.
At sentencing, Pacheco-Alvarado objected to the $2,500 fine as
unreasonable because he “does not have any financial recourse, anything right
now. He earns enough to help his brothers and just [subsist].” De la Cruz also
objected to his fine, but on more specific grounds:
. . . [W]e also would object to the fine . . . that was imposed because
the Court has already adopted the PSR and its findings of fact as
true and correct. And the PSR states . . . that Mr. Cruz does not
have the ability to pay. He's represented by the Federal Public

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Nos. 13-31083 & 14-30478
Defender's Office. He's already been adjudged by the magistrate
court that he is too poor to afford an attorney. He has no assets.
According to a records check by the probation officer, he has no
assets, no ownership of a vehicle, property, or other assets. He has
a sixth grade education. If he is released back into this country, if
he is given permission in this country, he would not be able to work
to pay a fine unless he was given . . . work permit permission by
the U.S. Government.

In terms of at the Bureau of Prisons . . . once Your Honor imposes
the sentence, then Mr. Cruz transfers over to the Attorney General
for the execution of that sentence . . .

And the Federal Bureau of Prisons [has] meetings with the
defendants, their case managers, to decide how much can be paid
in terms of a fine. And their rules and regulations are extensive,
but it doesn't account for a fine being paid in the amount of one-
third of whatever earnings that he makes . . . .

In de la Cruz’s case, the PSR did not identify any factors that would
warrant a departure or variance from the Guidelines imprisonment range of
18 to 24 months. Nevertheless, the district court imposed an above-Guidelines-
range sentence of 60 months’ imprisonment, followed by three years of
supervised release. Recognizing that this sentence fell above the recommended
range, the district court explained:
Look, the problem with this case is that the defendant really has a
triple threat here—he’s pulled a hat trick—in terms of not only
being here illegally, but participating in the distribution of some
very serious drugs, which I’ve already commented on this morning
in connection with the prior sentencing, oxycodone, hydrocodone,
and on top of that, just for good measure, to throw in a firearm.

So the Court’s concern is not simply that the defendant is here
illegally; it’s that he’s here illegally committing crimes of some
gravity, and the Court has to factor that into the sentence . . .

This sentence is imposed outside and in variance of the advisory
guideline sentence. . . . The court finds that the sentence imposed

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Nos. 13-31083 & 14-30478
reflects the nature and serious circumstances of these offenses,
which the Court has already referred to—the seriousness of these
offenses, including him being here illegally, the issue of the
firearm, as well as the distribution of drugs that have also been a
plague on the community, and particularly in this part of the
country, and particularly among young people.

De la Cruz objected to the above-range sentence.
Both Pacheco-Alvarado and de la Cruz timely appealed.
II.
We address first the statutory division of authority between district
courts and the Federal Bureau of Prisons (“BOP”) with regard to the imposition
and collection of criminal fines. Under 18 U.S.C. § 3572 district courts have the
authority to “determin[e] whether to impose a fine, and the amount, time for
payment, and method of payment of a fine”—a determination guided by several
enumerated factors. 10 District courts are also authorized to set a schedule for
payment:
A person sentenced to pay a fine or other monetary penalty,
including restitution, shall make such payment immediately,
unless, in the interest of justice, the court provides for payment on
a date certain or in installments. If the court provides for payment
in installments, the installments shall be in equal monthly
payments over the period provided by the court, unless the court
establishes another schedule. 11

At the same time, “[a]fter a district court sentences a federal offender,
the Attorney General, through the BOP, has the responsibility for
administering the sentence.” 12 And under 18 U.S.C. § 3612, the Attorney

10 See 18 U.S.C. § 3572(a).
11 Id. at § 3572(d)(1).
12 United States v. Wilson, 503 U.S. 329, 335 (1992) (citing 18 U.S.C. § 3621(a)); see

18 U.S.C. §§ 3574, 4042.
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General is “responsible for the collection of an unpaid fine.” 13 The Attorney
General, in turn, has promulgated rules through the BOP establishing the
Inmate Financial Responsibility Program (“IFRP”), a work program designed
to “help [the] inmate develop a financial plan” to meet certain financial
obligations, including the payment of court-imposed fines. 14
IFRP regulations provide for a detailed process by which an inmate’s
prison earnings are allocated to pay his financial obligations. First, at the
inmate’s initial classification, unit staff reviews the inmate’s existing financial
obligations and develops a plan for their payment, “ordinarily to be paid in the
[following] priority order”: (1) special assessments imposed under
18 U.S.C. § 3013; (2) court-ordered restitution; (3) fines and court costs; (4)
state or local court obligations; and (5) other federal government obligations. 15
Next, each month unit staff subtracts from the inmate’s trust fund account the
inmate’s minimum payment schedule. “Ordinarily, the minimum payment
schedule for non-UNICOR and UNICOR grade 5 inmates will be $25.00 per
quarter . . . Inmates assigned grades 1 through 4 in UNICOR ordinarily will
be expected to allot not less than 50% of their monthly pay to the payment
process.” 16 This minimum payment, however, may exceed the “ordinary”

13 This responsibility only covers fines certified through 18 U.S.C. § 3612(b), but given
that all fines over $100 must be certified, and no party claims that the instant fines were not
certified, we assume, without deciding, that the instant fines were certified.
14 28 C.F.R. § 545.11.
15 Id. at § 545.11(a).
16 Id. at § 545.11(b).

“Each sentenced inmate who is physically and mentally able is . . . assigned to an
institutional, industrial, or commissary work program.” Id. at § 545.23. For purposes of
standardization across the federal prison system, “[e]ach inmate work position is assigned
one of four pay grade levels”—with “Grade 1” positions receiving the highest pay—according
to factors like “the position’s educational and vocational requirements, physical demands,
working conditions . . . and the degree of responsibility held by the inmate worker.” Id.
at § 545.26. UNICOR, also known as Federal Prison Industries (FPI), is a wholly owned
government corporation designed to employ and “provide meaningful work” to federal
inmates in an industrial setting. 28 C.F.R. § 345.10. “Approximately 16% of work-eligible
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Nos. 13-31083 & 14-30478
amount for all grades and classifications of work, “taking into consideration
the inmate’s specific obligations, institution resources, and community
resources.” 17 Finally, after subtracting the inmate’s minimum monthly
payment, unit staff excludes from its assessment $75.00 per month, which is
deposited into the inmate’s trust fund account to afford the inmate access to
the Inmate Telephone System. 18
Appellants claim that in setting a monthly payment schedule for the
fines the district court impermissibly encroached on the authority of the BOP.
Appellants first argue that the district court’s orders function as an improper
“garnishment” of their prison wages. We disagree. While a district court cannot
order the BOP to garnish a defendant’s wages absent the defendant’s default
on paying his fine, 19 the district court in this case did not so order. Instead, it
imposed a monthly payment schedule as a proportion of future prison wages
conditioned upon those wages materializing in fact. It did not attempt to
impermissibly enforce its order.
Appellants next urge that the condition scheduling payment of at least
one-third of their monthly prison earnings interferes with carefully calibrated
IFRP procedures. Again we disagree. The district court has the authority to
impose a fine and provide for a payment schedule. Although the BOP is
responsible for collection of unpaid fines, IFRP regulations expressly
countenance deviations from “ordinary” processes when called for to meet an

inmates work in FPI factories.” See “Custody and Care,” Federal Bureau of Prisons: UNICOR,
available at http://www.bop.gov/inmates/custody_and_care/unicor.jsp. Other inmates receive
“performance pay” assignments, contributing to the day-to-day operation of the prison “(e.g.,
carpentry, plumbing, food service.).” See 28 C.F.R. §§ 545.21, 545.22.
17 28 C.F.R. § 545.11(b).
18 Id.
19 See, e.g., United States v. Badger, 581 F. App’x 541, at *2 (6th Cir. 2014).

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Nos. 13-31083 & 14-30478
inmate’s specific obligations. We cannot conclude that the district court’s order
was improper. 20
III.
Appellants argue that the fines imposed were unreasonable. We review
under the two-part test set out in Gall v. United States. 21 First, we determine
whether the sentence was procedurally proper, which means:
[t]hat the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence – including an explanation for any deviation
from the Guidelines range. 22

Second, we consider the substantive reasonableness of the sentence. We “take
into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” 23 For “properly calculated, within-
[G]uidelines sentences,” we employ a presumption of reasonableness, which “is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” 24

20 The parties dispute the applicable standard of review for this issue. Appellants
couch their argument in jurisdictional terms, urging for review de novo. Because Appellants
did not preserve this argument by objection below, the government contends we ought review
for plain error. Finding no conflict between the district court’s order and the BOP’s
administrative responsibility, we need not and do not address the question of what standard
applies.
21 552 U.S. 38 (2007).
22 Id. at 51.
23 Id.
24 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

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If the defendant properly objects to the sentence before the district court,
we review for an abuse of discretion. 25 Under abuse of discretion review, “a
district court’s interpretation or application of the [ ] Guidelines is reviewed de
novo, and its factual findings . . . are reviewed for clear error.” 26
“A factual finding is not clearly erroneous as long as it is plausible in light of
the record as a whole.” 27 If the defendant “fail[s] to object at sentencing to the
reasonableness of his sentence,” we review only for plain error. 28
A.
De la Cruz challenges his fine on procedural grounds. 29 He argues that
because the district court adopted the statements in the PSR as its findings of
fact, among them that de la Cruz lacked a present ability to pay a fine, it erred
in imposing the fine. As he presented this objection at sentencing, we review
for an abuse of discretion.
We have previously advised that where a court adopts a PSR that
“contains fact findings suggesting a present inability to pay,” but does not
affirmatively recommend against imposition of a fine, the court may impose a
fine, but should explain how its decision comports with the PSR’s findings. 30
We “will not reverse the fine merely because no express finding was made but
will review the finding of ability to pay necessarily implied by such

25 United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
26 United States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th Cir. 2008) (citation
omitted).
27 United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005) (citation omitted).
28 Peltier¸ 505 F.3d at 391.
29 Pacheco-Alvarado does not raise a procedural reasonableness challenge.
30 United States v. Voda, 994 F.2d 149, 155 n.14 (5th Cir. 1993) (quoting United States

v. Matovsky, 935 F.2d 719, 722 (5th Cir. 1991); see United States v. Brantley, 537 F.3d 347,
352 (5th Cir. 2008); United States v. Hodges, 110 F.3d 250, 251 (5th Cir. 1997) (“The PSR
does not make a recommendation regarding a fine, but rather states that ‘it would be difficult’
for the defendant to pay, and notes that if the defendant found gainful employment
upon release from prison, his ability to pay would be increased.”); United States v. Fair, 979
F.2d 1037, 1040-41 (5th Cir. 1992).
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Nos. 13-31083 & 14-30478
consideration.” 31 Here, consistently with the PSR’s factual findings, the district
court expressly recognized de la Cruz’s present inability to pay. In imposing the
fine, the court conditioned payment on de la Cruz’s ability to work while in
prison and on his earning potential after release. These considerations
necessarily imply a conclusion about de la Cruz’s future ability to pay—one
that does not conflict with the facts contained in the PSR. By making this clear
the district court complied with our procedural requirements.
B.
Both Appellants challenge the substantive reasonableness of the fines.
They argue that the district court erred in concluding that, if allowed to work
in the future, they would be able to pay. Under the Guidelines, “[t]he court
shall impose a fine in all cases, except where the defendant establishes that he
is unable to pay and is not likely to become able to pay any fine.” 32 To be clear,
“[t]he defendant bears the burden of proving his inability to pay a fine, and he
may rely upon the PSR to establish his inability to pay.” 33 It is undisputed that
in both cases the fine imposed was within the recommended Guidelines range.
We therefore employ a presumption of reasonableness in each case. 34
1.
Because de la Cruz objected to his fine on the grounds that he lacked
both present and future ability to pay, we review for an abuse of discretion.
The district court based its conclusion about de la Cruz’s future ability to pay
on two considerations: (1) his prospective prison earnings, and (2) his earning
potential after release from prison if he is not removed from the United States

31 Voda, 994 F.2d at 155 n.14.
32 U.S.S.G. § 5E1.2(a).
33 United States v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002) (citation omitted).
34 United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012).

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or if he is removed and later reenters. De la Cruz challenges the district court’s
findings on both fronts.
First, with regard to prospective income from work during
imprisonment, de la Cruz notes that as an illegal alien subject to an order of
removal, he cannot be considered for a work assignment with UNICOR,
making him eligible only for a lower-paying, non-UNICOR work assignment
while incarcerated. 35 He urges that income from a non-UNICOR work
assignment could not plausibly support his ability to pay the fine. We disagree.
Courts within and beyond our circuit have held that a sentencing court may
base a conclusion about a defendant’s future ability to pay a fine on prospective
prison wages. 36 Moreover, the district court conditioned payment on de la
Cruz’s being allowed to work and receive monetary compensation, and it
ordered a proportional—as opposed to absolute—monthly payment schedule of
one-third of his prospective prison earnings. De la Cruz points to nothing that
establishes it would be impossible or even implausible for him to comply with
the district court’s order in the event he works and receives wages in a non-
UNICOR work assignment.
Second, with regard to his earning potential while subject to supervised
release, de la Cruz argues that as a previously deported illegal alien with
aggravated felony convictions who is currently under an order of removal, it is

35 “An inmate or detainee may be considered for assignment with FPI unless the
inmate is a pretrial inmate or is currently under an order of deportation, exclusion, or
removal.” 28 C.F.R. § 345.35(a). When de la Cruz illegally reentered the United States after
having been removed to Mexico in 2012, the prior order of removal was automatically
reinstated. 8 U.S.C. § 1231(a)(5).
36 United States v. Reyes-Sanchez, 544 F. App’x 284, 285 (5th Cir. 2013); United States

v. Khokhani, 349 F. App’x 430, 432 (11th Cir. 2009); United States v. Brantley, 537 F.3d 347,
352-53 (5th Cir. 2008); United States v. Aguilar, 71 F.3d 879, 1995 WL 727505, at *1, (5th
Cir. Nov. 24, 1995); United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994); United States
v. Taylor, 984 F.2d 618, 622 (4th Cir. 1993) (“The courts are presumed to have some passing
familiarity with the conditions of confinement at a federal prison, including how much
prisoners get paid.”).
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unlikely he will be allowed to remain in the United States, 37 and that if he does
lawfully remain or reenter, it is unlikely that he will be able to lawfully obtain
employment. 38 As an initial matter, we have previously indicated that “the fact
of deportability alone does not prevent the imposition of a fine.” 39 And although
de la Cruz accurately describes the situation he likely will face upon his release
from prison, we cannot conclude that de la Cruz has met his burden to
overcome the presumption of reasonableness by demonstrating his inability to
pay.
De la Cruz worries that he might be forced to violate the law in order to
comply with the district court’s order; that if he somehow remains in the
United States during his term of supervised release, he might have to obtain
unlawful employment to earn income to satisfy any remaining balance of the
fine. We do not read the district court’s order to require this absurd result. 40
Among the conditions of de la Cruz’s supervised release, the court required
that if he remains in the United States he must “work regularly at a lawful
occupation, unless excused by the probation officer for schooling, training, or
other acceptable reasons.” We read the fine condition requiring payment of any
remaining balance during the term of de la Cruz’s supervised release in light
of the condition of supervision requiring him to obtain regular, lawful
employment, unless excused. Bolstering this reading, the district court
expressly allowed that “the monthly installment payment amount is subject to

37 See 8 U.S.C. §§ 1158(b)(2)(A)(ii) & (B)(i) (ineligible for asylum), 1229b(a)(3)
(ineligible for cancellation of removal for certain permanent residents), 1231(b)(3)(B)
(ineligible for withholding of removal where alien’s life or freedom would be threatened).
38 See id. at § 1324a(a)(1) & (h)(3) (unlawful for person to hire an alien unauthorized

for employment).
39 United States v. Lopez-Flores, 70 F. App’x 236, 237 (5th Cir. 2003) (citing United

States v. Thompson, 227 F.3d 43 (2d Cir. 2000)).
40 Cf. Atchison v. Collins, 288 F.3d 177, 181 (5th Cir. 2002) (noting “the common

mandate of statutory construction to avoid absurd results”) (citation omitted).
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increase or decrease depending on the defendant’s ability to pay.” Finally, in
support of its finding regarding de la Cruz’s earning potential from lawful
employment after his release, the court cited his “prior work as a day laborer,
and as a farmer on his family farm, and that he is presently only 42 years of
age with no reported physical or mental health problems precluding gainful
employment.” De la Cruz fails to show that the court erred in so finding.
2.
Pacheco-Alvarado objected to his fine at sentencing based on his present
inability to pay. He did not object to the district court’s conclusion that, if
allowed to work during and after imprisonment, he would in the future be able
to pay. As his objection did not give the district court the opportunity to address
the gravamen of the argument he now presents on appeal, we review only for
plain error. 41 We have previously upheld, on plain error review, fines based in
part on the district court’s conclusion that the defendant could make payments
from prison wages. 42 This, in addition to the conclusion we reached above
regarding an identical challenge from de la Cruz, directs the same disposition
here. The district court did not plainly err in imposing the fine based on
Pacheco-Alvarado’s future ability to pay.
IV.
De la Cruz requests a limited remand to correct a clerical error in the
written judgment, which conflicts with the district court’s oral pronouncement
regarding the fine. “[W]hen there is a conflict between a written sentence and
an oral pronouncement, the oral pronouncement controls.” 43 We remand for
the limited purpose of correcting the written judgment to reflect the monthly

41 See Puckett v. United States, 556 U.S. 129, 134-35 (2009).
42 See United States v. Reyes-Sanchez, 544 F. App’x 284, 285 (5th Cir. 2013); United
States v. Brantley, 537 F.3d 347, 352-53 (5th Cir. 2008).
43 United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

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Nos. 13-31083 & 14-30478
payment schedule set at one-third of de la Cruz’s prison earnings as ordered in
the court’s oral pronouncement. 44
V.
Finally, de la Cruz challenges the substantive reasonableness of his 60-
month sentence of imprisonment, which falls above the recommended
Guidelines range of 18 to 24 months indicated in the PSR.
We “consider the totality of the circumstances, including the extent of
any variance from the [G]uidelines range. A deviation from the Guidelines
range will not alone make a sentence substantively unreasonable.” 45 The
district court must explain its reasons for deviation, however, which “should
be fact-specific and consistent with the sentencing factors enumerated in [18
U.S.C. §] 3553(a).” 46 “A non-Guideline sentence unreasonably fails to reflect
the statutory sentencing factors where it (1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” 47
The district court provided a lengthy and detailed explanation for its
deviation from the Guidelines, focused on the factors enumerated in
18 U.S.C. §§ 3553(a)(1), “the nature and circumstances of the offense,” and
3553(a)(2)(A), “the need for the sentence imposed to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for
the offense.” We have affirmed upward departures of comparable magnitude
based on similarly specific explanations by district courts dealing with

44 See United States v. Powell, 354 F.3d 362, 372 (5th Cir. 2003).
45 United States v. Rhine, 637 F.3d 525, 529 (5th Cir. 2011) (quoting United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008)) (internal quotation marks omitted).
46 United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
47 Id. at 708.

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Nos. 13-31083 & 14-30478
analogous fact situations. 48 We cannot conclude that the sentence was
unreasonable.
VI.
Pacheco-Alvarado’s sentence is AFFIRMED. De la Cruz’s sentence is
AFFIRMED in part and REMANDED in part for the limited purpose of
correcting a clerical error in the written judgment.

48 See, e.g., United States v. Verastegui, 201 F. App’x 272, 273 (5th Cir. 2006).
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Nos. 13-31083 & 14-30478
GRAVES, Circuit Judge, specially concurring.
I write separately to express my understanding of the majority opinion
that the relevant earnings from which the one-third payment would be
deducted would consist of earnings remaining after the subtraction of any
amounts excluded from assessment under the regulations. See 28 C.F.R. §
545.11(b).

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