United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50768
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-74-ALL-PRM
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Martinez was sentenced to a total of 24 months
imprisonment and three years supervised release following his
guilty-plea conviction for importation and possession of
marijuana. See 21 U.S.C. §§ 841, 952, 960. Martinez appeals
only the district court’s imposition of a $300 fine. At
sentencing, Martinez objected to the fine in light of the
probation officer’s finding that he lacked the ability to pay any
*
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that this opinion should not be published and is not precedent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. 03-50768
-2-
court imposed fine. The Government has filed an unopposed motion
to waive the briefing requirement, vacate the judgment as to the
fine, and affirm the judgment as modified.
Where, as in this case, the district court 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
Martinez’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’s motion to waive the briefing requirement is
GRANTED. Given our determination that the fine cannot be upheld,
we hereby GRANT the Government’s motion to VACATE the $300 fine
imposed on Martinez 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.