United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 8, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50006
c/w No. 03-50030
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL RUBIO-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-902-ALL-PRM
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Daniel Rubio-Hernandez (“Rubio”),
appeals from his conviction, 55-month sentence, and $250 fine for
illegal re-entry, 8 U.S.C. § 1326, as well as from the revocation
of his supervised release. Rubio’s indictment under 8 U.S.C. §
1326, like the petition to revoke his supervised release, came
after an investigation pursuant to a traffic stop revealed that
Rubio was a deported felon.
*
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that this opinion should not be published and is not precedent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. 03-50006
c/w No. 03-50030
-2-
Rubio first attacks his illegal re-entry conviction.
He argues that the district court erred in denying his motion
to suppress evidence obtained as a result of the traffic stop.
Evidence of Rubio’s identity, like his record as a deported felon,
is not subject to suppression. See United States v. Roque-
Villanueva, 175 F.3d 345, 346 (5th Cir. 1999). Rubio has failed to
identify any evidence obtained as a result of the traffic stop that
is subject to suppression. Rubio’s conviction under 8 U.S.C. §
1326 is accordingly AFFIRMED.
Rubio contends that the revocation of his supervised release
should be vacated because it rested on his illegal re-entry
conviction. Based on the affirmation of Rubio’s conviction under
8 U.S.C. § 1326, we likewise AFFIRM the revocation of Rubio’s
supervised release.
Rubio argues that his 55-month sentence violates due process
because it exceeds the statutory maximum sentence for the offense
charged in the indictment. Rubio acknowledges that this argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he states that he seeks to preserve the issue for
possible Supreme Court review in view of Apprendi v. New Jersey,
530 U.S. 466 (2000). Apprendi did not overrule Almendarez-Torres.
See Apprendi, 530 U.S. at 489-90. Rubio has not shown error on
this ground.
Rubio’s remaining argument is that the district court erred in
imposing a $250 fine. Where, as in this case, the district court
No. 03-50006
c/w No. 03-50030
-3-
adopts a presentence report (PSR) showing limited or no ability to
pay a fine, the Government must come forward with evidence showing
that a defendant can, in fact, pay a fine before one can be
imposed. See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.
1992). The Government admits that no such evidence was adduced,
and the district court did not make specific findings regarding
Rubio’s ability to pay a fine. Consequently, this court cannot
uphold the district court’s imposition of the fine. See United
States v. Hodges, 110 F.3d 250, 251 (5th Cir. 1997).
The Government requests that this court modify the judgment
rather than remand the issue of the fine to the district court.
Given our determination that the fine cannot be upheld, we hereby
VACATE the $250 fine imposed on Rubio and MODIFY the district
court’s judgment accordingly. As modified herein, the judgment of
the district court is AFFIRMED.
VACATED and MODIFIED in part; and as modified, AFFIRMED.