United States v. Perez-Jiminez

FILED
United States Court of Appeals
Tenth Circuit

September 2, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 10-1322
(D.C. No. 1:09-CR-00402-DME-1)
ODALIS PEREZ-JIMINEZ, a/k/a
Perez Odalis,

Defendant - Appellant.

ORDER

Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.

The panel has determined, sua sponte, that the decision issued in this

matter originally on August 19, 2011, should re-issue as a published Opinion.

Accordingly, the clerk of court is directed to file the attached published decision

nunc pro tunc to the original filing date.

Entered for the Court,

ELISABETH A. SHUMAKER
Clerk of Court
 FILED
United States Court of Appeals
Tenth Circuit

August 19, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 10-1322
ODALIS PEREZ-JIMINEZ, a/k/a Perez
Odalis,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:09-CR-00402-DME-1)

Submitted on the briefs: *

Raymond P. Moore, Federal Public Defender, John T. Carlson, Assistant Federal
Public Defender, and David E. Johnson, Research and Writing Specialist, Office
of the Federal Public Defender, District of Colorado, Denver, Colorado, for
Defendant-Appellant.

John F. Walsh, United States Attorney, and Paul Farley, Assistant United States
Attorney, District of Colorado, Denver, Colorado, for Plaintiff-Appellee.

*
After examining the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Before KELLY, SEYMOUR, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Bureau of Prisons officers searched Defendant-Appellant Odalis Perez-

Jiminez’s person and cell at the Federal Correctional Institution in Florence,

Colorado. In his pockets, they found two shanks—homemade, sharpened metal

knives—each of which was approximately five-and-a-half inches long and

sharpened to a point.

Mr. Perez-Jiminez was indicted on one count of possession of a weapon

while an inmate of a federal correctional institution, in violation of 18 U.S.C.

§ 1791(a)(2) & (b)(3). 1 He pleaded guilty, and the U.S. Probation Office

subsequently prepared a Presentence Report (“PSR”). 2

At sentencing, the district court found that Mr. Perez-Jiminez’s instant

1
As relevant to Mr. Perez-Jiminez’s appeal, the statute provides that
“[w]hoever . . . being an inmate of a prison, makes, possesses, or obtains . . . a
prohibited object . . . shall be punished . . . [by] imprisonment for not more than 5
years . . . if the object is . . . a weapon (other than a firearm or destructive
device).” 18 U.S.C. § 1791. Although the statute does not contain an express
mens rea element, we have held that “a violation of section 1791 must be
committed ‘knowingly.’” United States v. Perceval, 803 F.2d 601, 603 (10th Cir.
1986). Consistent with this requirement, the indictment charged Mr. Perez-
Jiminez with “knowingly” possessing the shanks. R., Vol. 1, at 4 (Indictment,
filed Sept. 15, 2009).
2
The Probation Office used the 2009 version of the United States
Sentencing Guidelines in preparing the PSR. The parties do not question that
choice and, therefore, we exclusively apply that version to the facts of this case.

2
offense of conviction was a crime of violence pursuant to U.S. Sentencing

Guidelines Manual (“U.S.S.G.”) § 4B1.2(a), and that he was a career offender

under U.S.S.G. § 4B1.1(a). Applying the career-offender provisions, the district

court assigned Mr. Perez-Jiminez an offense level of fourteen and a criminal

history category of VI. These factors yielded an advisory Guidelines

imprisonment range of thirty-seven to forty-six months and a fine range of $4000

to $40,000. The district court sentenced Mr. Perez-Jiminez to thirty-seven

months’ imprisonment and imposed a fine of $2000.

On appeal, Mr. Perez-Jiminez argues that the district court erred in

sentencing him as a career offender because his instant offense of conviction was

not a crime of violence, and that the district court abused its discretion in

imposing a $2000 fine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

Mr. Perez-Jiminez’s sentence.

DISCUSSION

I. Crime of Violence and Career-Offender Status

A. Standard of Review

This court reviews de novo the district court’s determinations that Mr.

Perez-Jiminez’s instant offense of conviction is a crime of violence, United States

v. Riggans, 254 F.3d 1200, 1203 (10th Cir. 2001), and that Mr. Perez-Jiminez

qualifies as a career offender, United States v. Patterson, 561 F.3d 1170, 1172

(10th Cir. 2009). The district court’s factual findings are reviewed for clear error.

3
Patterson, 561 F.3d at 1172.

B. Overview

Under the Guidelines,

[a] defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.

U.S.S.G. § 4B1.1(a).

Mr. Perez-Jiminez and the government agree that he meets the first and

third prongs for career-offender status, and it is obvious that Mr. Perez-Jiminez’s

instant offense of conviction is not a controlled-substance offense. Accordingly,

in deciding whether Mr. Perez-Jiminez is a career offender, we need only decide

whether his instant offense of conviction—possession of a weapon in prison—is a

crime of violence.

A crime of violence is defined as

any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.

4
U.S.S.G. § 4B1.2(a) (emphasis added).

The parties agree that Mr. “Perez-Jiminez’s conviction . . . is punishable by

more than one year’s imprisonment, does not involve physical force, and is not

one of the crimes enumerated in § 4B1.2(a)(2).” Aplee. Br. at 12; see Aplt.

Opening Br. at 14 (“[T]he only way this offense can be classified as a crime of

violence is if it ‘otherwise involves conduct that presents a serious potential risk

of physical injury to another.’” (quoting U.S.S.G. § 4B1.2(a)(2))). Therefore, in

ruling on whether Mr. Perez-Jiminez’s instant offense of conviction is a crime of

violence—and thus whether he is a career offender—we must determine only

whether his offense falls within U.S.S.G. § 4B1.2(a)(2)’s residual clause because

the offense “involves conduct that presents a serious potential risk of physical

injury to another.”

C. Conduct-Specific Inquiry

To determine whether a past conviction is for a crime of violence, “we

employ a categorical approach that looks to the words of the statute and judicial

decisions interpreting it, rather than to the conduct of any particular defendant

convicted of the crime.” United States v. Wise, 597 F.3d 1141, 1144 (10th Cir.

2010) (citing Taylor v. United States, 495 U.S. 575, 602 (1990)), cert. denied, 79

U.S.L.W. 3710 (2011). “[I]f the statute encompasses both conduct that would

qualify as a crime of violence and conduct that would not, we employ a modified

categorical approach,” under which we “look to the statutory elements, the

5
defendant’s charging documents, plea agreement and colloquy (if any), and

uncontested facts found by the district judge to determine whether the particular

defendant’s conduct violated the portion of the statute that is a crime of

violence.” Id. These categorical approaches do “not involve a subjective inquiry

into the facts of the case.” United States v. McConnell, 605 F.3d 822, 825 (10th

Cir. 2010), cert. denied, 79 U.S.L.W. 3710 (2011).

However, our precedent explicitly permits the use of a conduct-specific

inquiry “when considering whether the instant offense is a crime of violence.”

Riggans, 254 F.3d at 1204 (emphasis added) (quoting United States v. Smith, 10

F.3d 724, 731 n.10 (10th Cir. 1993)) (internal quotation marks omitted). Under

the conduct-specific inquiry, the “court correctly consider[s] the facts underlying

[the defendant’s] conviction” in determining whether it is for a crime of

violence. 3 Id. Although we have explained that “the practical difficulties of

conducting an ad hoc mini-trial[]” require application of the categorical approach

3
The government argues that we should consider the conduct
underlying Mr. Perez-Jiminez’s prior conviction of possessing a weapon in
prison, which involved Mr. Perez-Jiminez stabbing another inmate five times with
a converted box cutter. Mr. Perez-Jiminez replies that we must not consider the
facts of his prior convictions because “a court’s factual approach analysis must
focus on the conduct of the present instant offense . . . . The defendant’s criminal
history and prior conduct is not relevant.” Aplt. Reply Br. at 10. Because we
conclude that Mr. Perez-Jiminez’s instant offense of conviction is a crime of
violence based on the facts of that conviction, we affirm his sentence without
deciding whether we might also look to the conduct underlying his prior
convictions.

6
to past convictions, we may apply a conduct-specific inquiry to instant offenses

because “these concerns do not apply when the court is examining the conduct of

the defendant in the instant offense.” Id. at 1203–04 (alteration in original)

(quoting United States v. Walker, 930 F.2d 789, 794 (10th Cir. 1991)) (internal

quotation marks omitted). Mr. Perez-Jiminez concedes that we must apply a

conduct-specific approach to determine whether his instant offense of conviction

is a crime of violence. 4 See, e.g., Aplt. Reply Br. at 8 (“Mr. Perez-Jiminez agrees

4
In light of Mr. Perez-Jiminez’s concession, we do not inquire
whether his conviction for violating 18 U.S.C. § 1791 would qualify as a crime of
violence under a categorical approach. Significantly, this concession also relieves
us of the obligation of determining how Supreme Court developments related to
the categorical approach would affect a categorical inquiry here. See Sykes v.
United States, 131 S. Ct. 2267, 2275–76 (2011); Begay v. United States, 553 U.S.
137, 144–45 (2008); see also Chambers v. United States, 555 U.S. 122, 127–29
(2009). Begay, and later Sykes, applied the categorical approach to determine
whether a prior offense was a violent felony under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924. Because the residual clauses of the ACCA and
U.S.S.G. § 4B1.2(a) are “worded almost identically,” we have looked to cases
construing “violent felony” under the ACCA in interpreting “crime of violence”
under U.S.S.G. § 4B1.2(a), and have stated that if a conviction under a given
statute is held to be a violent felony, that holding “controls the outcome” of a
subsequent case asking whether such a conviction is for a crime of violence.
Wise, 597 F.3d at 1145.

In Begay, the Supreme Court held that the ACCA’s residual clause extends
only “to crimes that are roughly similar, in kind as well as in degree of risk
posed, to the examples” enumerated, 553 U.S. at 143—that is, crimes which
“typically involve purposeful, violent, and aggressive conduct,” id. at 144–45
(internal quotation marks omitted). See Wise, 597 F.3d at 1144 (“To determine
whether the offense categorically falls within the residual clause . . . we must
determine whether the offense is ‘roughly similar, in kind as well as in degree of
risk posed,’ to the enumerated crimes . . . . A crime is ‘roughly similar’ to an
(continued...)

7
 4
(...continued)
enumerated crime if it ‘typically involve[s] purposeful, violent, and aggressive
conduct.’” (alteration in original) (quoting Begay, 553 U.S. at 143–45)).

In reliance on Begay’s “purposeful, violent, and aggressive” test, we have
previously held that the Texas crime of possessing a deadly weapon in prison was
a “violent felony” under the ACCA because it was roughly similar, in kind as well
as in degree of risk posed, to the ACCA’s enumerated offenses. See United States
v. Zuniga, 553 F.3d 1330, 1334–36 (10th Cir. 2009). Because we are applying a
conduct-specific approach here, the government is clearly not correct in asserting
that “Zuniga is dispositive of the issue.” Aplee. Br. at 7. Indeed, even if we were
applying a categorical approach, the Supreme Court’s decision in Sykes would at
least give us pause in giving controlling effect to Zuniga.

In Sykes, the Court explained that “levels of risk divide crimes” falling
within and beyond the ACCA’s residual clause, 131 S. Ct. at 2275, and that the
test for inclusion is whether a crime is “similar in risk to the listed crimes,” id. at
2276. See United States v. Armijo, __ F.3d __, 2011 WL 2687274, at *7 n.14
(10th Cir. 2011) (“[T]he [Sykes] Court held that the benchmark for evaluating
whether any given crime falls within the ACCA’s residual clause is potential risk
of serious injury to another.”). Sykes limited Begay’s “purposeful, violent, and
aggressive” test to strict liability, negligence, and recklessness crimes. See 131 S.
Ct. at 2275–76 (“As between the two inquiries”—Begay’s “purposeful, violent,
and aggressive” test, and whether an offense presents a serious potential risk of
physical injury to another—“risk levels provide a categorical and manageable
standard that suffices to resolve the case before us.”); id. at 2285 (Scalia, J.,
dissenting) (“[T]he Court now suggests [that Begay’s “purposeful, violent, and
aggressive” test] applies only to strict liability, negligence, and recklessness
crimes.” (citation omitted) (internal quotation marks omitted)); United States v.
Smith, __ F.3d __, 2011 WL 2714083, at *3 (10th Cir. 2011) (“Where the felony
at issue is not a strict liability, negligence, or recklessness crime the test is not
whether the crime was purposeful, violent, and aggressive but whether it is
similar in risk to the listed crimes.” (quoting Sykes, 131 S. Ct. at 2276) (internal
quotation marks omitted)); see also United States v. Thomas, 643 F.3d 802, 806
(10th Cir. 2011) (referring to “the exception set forth in [Begay] for ‘strict
liability, negligence, and recklessness crime[s]’ even when they present serious
risks of physical injury” (alteration in original) (quoting Sykes, 131 S. Ct. at
2276)). As noted, 18 U.S.C. § 1791 requires a “knowing” mens rea. See
(continued...)

8
with the government that this Court’s current precedent requires it to apply a

factual ‘conduct-specific’ approach in this case.”).

Looking to the facts of his instant offense of conviction, we have little

difficulty concluding that Mr. Perez-Jiminez’s offense presented a serious

potential risk of physical injury to another and, therefore, constituted a crime of

violence. 5 Mr. Perez-Jiminez, a federal inmate, was found in possession of two

shanks, each of which was approximately five-and-a-half inches long and

sharpened to a point. It is patent that such shanks are a deadly weapon. Indeed,

both the Supreme Court and this court have characterized similar weapons as

4
(...continued)
Perceval, 803 F.2d at 603. Therefore, although we do not decide the question,
Begay’s “purposeful, violent, and aggressive” test—which we relied upon in
Zuniga—may no longer apply to offenses like the one at issue here.
5
Mr. Perez-Jiminez makes the puzzling assertion that, in conducting
the conduct-specific analysis, we are required to apply a “two-part inquiry,” set
forth in McConnell, 605 F.3d at 826, and derived from the Supreme Court’s
Begay decision. See Aplt. Reply Br. at 15; see also Begay, 553 U.S. at 144–45.
However, as discussed above, see supra note 4, Begay applied a categorical
approach to a prior offense—not, as here, a conduct-specific approach to an
instant offense of conviction—and furthermore, in light the Supreme Court’s
subsequent decision in Sykes, 131 S. Ct. at 2275–76, Begay’s mode of analysis
may not be applicable to an offense like 18 U.S.C. § 1791, which has a
“knowing” mens rea. Moreover, the wisdom of Mr. Perez-Jiminez’s assertion is
called into serious question by his repeated reminders that the categorical and
case-specific approaches are different. See Aplt. Reply Br. at 17 (“[I]t must be
stressed that this Court’s precedent under the categorical and modified categorical
approach does not control the factual ‘conduct specific’ inquiry.”); id. at 18 (“The
two inquiries are different.”). Therefore, we reject Mr. Perez-Jiminez’s assertion
that we are obliged to apply the two-part inquiry here in determining whether his
instant offense of conviction is a crime of violence.

9
deadly. See Yates v. Evatt, 500 U.S. 391, 408 (1991) (characterizing a knife as a

deadly weapon), overruled in part on other grounds by Estelle v. McGuire, 502

U.S. 62, 72 n.4 (1991); United States v. Johnson, 967 F.2d 1431, 1435 (10th Cir.

1992) (same), abrogated in part on other grounds by Lewis v. United States, 523

U.S. 155, 162 (1998); United States v. Yazzie, 660 F.2d 422, 430 (10th Cir. 1981)

(“[T]he knife in question had a blade at least five inches long. . . . [S]uch a

weapon was likely to cause death or serious bodily injury, . . . [and] no reasonable

jury could find otherwise. The knife was therefore a deadly weapon as a matter

of law . . . .”); United States v. Davidson, 597 F.2d 230, 232 (10th Cir. 1979) (“A

deadly weapon was used, namely a dining room knife sharpened to a point, with a

homemade handle affixed thereto.”).

Furthermore, the penal context in which Mr. Perez-Jiminez possessed this

deadly weapon is a significant factor in our analysis. “[P]risons are inherently

dangerous places and they present unique problems.” United States v. Vahovick,

160 F.3d 395, 397 (7th Cir. 1998); accord United States v. Rodriguez-Jaimes, 481

F.3d 283, 287 (5th Cir. 2007). They “are necessarily dangerous places; they

house society’s most antisocial and violent people in close proximity with one

another.” Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005) (quoting

Farmer v. Brennan, 511 U.S. 825, 858 (1994) (Thomas, J., concurring in

judgment)) (internal quotation marks omitted); see Hudson v. Palmer, 468 U.S.

517, 526 (1984) (“Prisons, by definition, are places of involuntary confinement of

10
persons who have a demonstrated proclivity for antisocial criminal, and often

violent, conduct. Inmates have necessarily shown a lapse in ability to control and

conform their behavior to the legitimate standards of society by the normal

impulses of self-restraint . . . .”). Thus, it has been said that “acts of violence by

inmates against inmates are inevitable,” Taylor v. Freeman, 34 F.3d 266, 273 (4th

Cir. 1994) (quoting Shrader v. White, 761 F.2d 975, 980 (4th Cir. 1985)) (internal

quotation marks omitted), as “it is virtually impossible to eliminate violence

among the incarcerated,” id. at 273 n.6.

In prison, “contraband weapons . . . facilitate more frequent acts of

violence and more severe injuries.” Shrader v. White, 761 F.2d 975, 991 (4th Cir.

1985) (Sprouse, J., dissenting). Such weapons “may embolden inmates who

[otherwise] would be less aggressive,” and will “inflict substantially more severe

injuries” when they are wielded. Id. Put succinctly, possessing a dangerous or

deadly weapon in prison “enables violence.” United States v. Boyce, 633 F.3d

708, 712 (8th Cir. 2011) (quoting United States v. Vincent, 575 F.3d 820, 825 (8th

Cir. 2009)) (internal quotation marks omitted); see United States v. Marquez, 626

F.3d 214, 221 (5th Cir. 2010) (“A prisoner in possession of a deadly weapon

within a penal institution is significantly more likely to attack or physically resist

an apprehender, such as a guard, or another inmate.”).

Outside of prison, “[t]he felon who unlawfully possesses a firearm,

although disobeying the law, may have a legitimate use intended for the firearm,

11
such as target shooting or collecting.” United States v. Romero, 122 F.3d 1334,

1341 (10th Cir. 1997) (quoting United States v. Young, 990 F.2d 469, 472 (9th

Cir. 1993)); accord Marquez, 626 F.3d at 222 (“A felon may be in possession of

certain firearms, such as a pistol or hunting rifle, for recreational purposes, even

though that possession is unlawful.”); Vahovick, 160 F.3d at 397–98. But there is

no “similarly ‘innocent’ purpose behind the possession of a deadly weapon by a

prison inmate,” Young, 990 F.2d at 472, as “[t]he confines of prison preclude any

recreational uses for a deadly weapon,” Romero, 122 F.3d at 1341 (quoting

Young, 990 F.2d at 472).

“[T]here is no legitimate purpose for a prisoner to carry a weapon

‘designed to kill, injure or disable’ another. On the contrary, the only reason to

carry such a weapon is to use it to attack another or to deter an attack.” Romero,

122 F.3d at 1343; accord Marquez, 626 F.3d at 222–23 (“[T]here is no purpose

for possession of a deadly weapon in prison other than to have the means to

initiate violence or respond to violence with violence.”). And an inmate’s

possession of a weapon in prison indicates his willingness to use it. See Boyce,

633 F.3d at 712 (“When a prisoner carries a dangerous weapon, that behavior

indicates that he is ‘prepared to use violence if necessary’ and is ready ‘to enter

into conflict . . . .’” (quoting Zuniga, 553 F.3d at 1335–36)); Marquez, 626 F.3d

at 222 (“[A]t a minimum his intentional possession of a deadly weapon signals his

willingness to use it if, in his mind, the occasion warrants it.”); Zuniga, 553 F.3d

12
at 1335 (“Mr. Zuniga’s possession of a deadly weapon in prison likely indicated

that he was prepared to use violence if necessary.” (internal quotation marks

omitted)).

Accordingly, we hold that Mr. Perez-Jiminez’s possession in prison of a

deadly weapon—two sharpened, five-and-a-half-inch-long shanks—presented a

serious potential risk of physical injury to another. 6 Mr. Perez-Jiminez’s instant

offense of conviction was therefore a crime of violence, and the district court

properly sentenced him as a career offender.

II. Reasonableness of the Fine

As noted above, the Guidelines called for a fine of between $4000 and

$40,000, but the district court imposed a fine of only $2000 as part of Mr. Perez-

Jiminez’s sentence. Mr. Perez-Jiminez challenges the district court’s decision to

impose any fine, as well as the amount of the fine imposed.

6
We note that we held in Romero, 122 F.3d 1334, and reaffirmed in
Zuniga, 553 F.3d 1330, that “possession of a deadly weapon in prison ‘presents a
serious potential risk of physical injury to another.’” Zuniga, 553 F.3d at
1333–34 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Both Romero and Zuniga
employed a categorical approach. Indeed, Mr. Perez-Jiminez concedes that, under
the categorical approach, his instant offense of conviction presents a serious
potential risk of physical injury to another. See Aplt. Opening Br. at 15 (“He
realizes that the first inquiry is squarely settled by this Court’s precedent.”). But
Mr. Perez-Jiminez insists that the offense does not satisfy the additional inquiry
involving Begay’s “purposeful, violent, and aggressive” test. See Aplt. Opening
Br. at 23; see also Begay, 553 U.S. at 144–45. However, we have not used a
categorical approach here. Therefore, Romero and Zuniga are not controlling.

13
 A. Standard of Review

The Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), rendered the Guidelines advisory. Gall v. United States, 552 U.S. 38, 46

(2007). Accordingly, the district court is not required to impose a fine despite the

Guidelines’ command that it “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.” U.S.S.G. § 5E1.2(a); see United States v. Rattoballi, 452 F.3d 127,

139 (2d Cir. 2006) (“Because Booker rendered the whole of the Guidelines

advisory, it stands to reason that the Guidelines’ fine requirements were likewise

rendered advisory. . . . Accordingly, a district court is not under an obligation to

impose a fine post-Booker . . . .”), abrogated in part on other grounds by

Kimbrough v. United States, 552 U.S. 85, 108 (2007); United States v. Huber, 404

F.3d 1047, 1063 (8th Cir. 2005) (“The government argues that section 5E1.2(a)

requires the district court to fine a defendant unless the defendant establishes that

he is unable to pay. The guidelines, though, are now advisory. So the

government’s argument misses the mark.” (citation omitted)). 7

“Post-Booker, we review sentences for reasonableness under an abuse of

discretion standard.” United States v. Sutton, 520 F.3d 1259, 1262 (10th Cir.

7
A panel of this court reached a similar conclusion in a non-
precedential decision. See United States v. Torres, 188 F. App’x 791, 793–94
(10th Cir. 2006) (holding that the district court committed non-constitutional
Booker error by treating the Guidelines’ fine provisions as mandatory).

14
2008) (citing Gall, 552 U.S. at 46). “Reasonableness includes a procedural

component, which includes how the sentence was calculated, and [a] substantive

component concerning the length of the sentence actually imposed.” 8 Id. At

bottom, we seek to determine whether the district court abused its discretion in

imposing the fine. See United States v. Vigil, 644 F.3d 1114, 1123 (10th Cir.

2011). 9 The defendant bears the burden of proving both his present and future

inability to pay the fine. See U.S.S.G. § 5E1.2(e) (“If the defendant establishes

that . . . he is not able and . . . is not likely to become able to pay all or part of the

fine . . . the court may impose a lesser fine or waive the fine.”); Vigil, 644 F.3d at

1123 (“[D]efendant bears the burden of demonstrating an inability to pay a fine.”

(quoting United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999)) (internal

quotation marks omitted)). We will “reject a district court’s findings regarding a

8
As discussed infra, “sentence” is broadly defined to include not just
imprisonment, but also probation and fines—thus, a fine, like a term of
imprisonment, is merely one type of sentence available to the district court. We
have routinely distinguished between the procedural and substantive
reasonableness of sentences of imprisonment, but apparently have not so
distinguished the reasonableness of sentences of fines.

The parties have not framed their arguments in terms of procedural and
substantive reasonableness. Nevertheless, we believe it to be analytically
useful—if not required—to evaluate Mr. Perez-Jiminez’s arguments through the
lens of both procedural and substantive reasonableness, as he challenges both the
process by which the district court imposed his fine and the amount of the fine
imposed—i.e., the fine’s procedural and substantive reasonableness.
9
We note that we reviewed the district court’s decision to impose a
fine for abuse of discretion even prior to Booker. See, e.g., United States v.
Trujillo, 136 F.3d 1388, 1398 (10th Cir. 1998).

15
defendant’s ability to pay a fine only if they are clearly erroneous.” Trujillo, 136

F.3d at 1398.

B. Procedural Reasonableness: Burden on Defendant and Dependents

Mr. Perez-Jiminez argues that the district court was required to consider the

burden his fine would place on his dependents, but failed to “focus[] on the

burden Mr. Perez-Jiminez’s daughter may experience” because of his fine. Aplt.

Opening Br. at 25–26. This argument sounds in procedural error because it

alleges that the district court did not consider a factor that it was required to take

into account in sentencing Mr. Perez-Jiminez to a fine. See United States v.

Elfgeeh, 515 F.3d 100, 136 (2d Cir. 2008) (“In calculating a defendant’s fine, the

sentencing court must follow a procedure similar to the post-Booker procedure

that it is to follow in calculating a defendant’s term of imprisonment: It must

consider the Guidelines recommendation for the imposition of a fine, consider the

§ 3553(a) factors, and consider the fine-specific factors listed in 18 U.S.C.

§§ 3571 and 3572.”); cf. Gall, 552 U.S. at 51 (recognizing that “failing to

consider the § 3553(a) factors” is a procedural error).

In addition to the 18 U.S.C. § 3553(a) sentencing factors, the district court

must consider the additional factors set forth in 18 U.S.C. § 3572(a) in

determining whether to impose a fine at all, and must also consider both the

§ 3572(a) factors and the similar factors set forth in U.S.S.G. § 5E1.2(d) in

setting the amount of any fine. See 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2(d); see

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also Vigil, 644 F.3d at 1123 (“[Section] 3572(a) sets forth factors that must be

considered by a district court in determining whether to impose a fine, and the

amount, time for payment, and method of payment of a fine. Section 5E1.2(d) of

the Guidelines sets forth similar factors to be considered in determining the

amount of a fine.” (alteration omitted) (internal quotation marks omitted)). Both

§ 3572(a) and § 5E1.2(d) require the district court to consider the burden that a

fine would impose on the defendant and his dependents. See 18 U.S.C.

§ 3572(a)(2) (requiring the district court to consider “the burden that the fine will

impose upon defendant, [or] any person who is financially dependent on the

defendant”); U.S.S.G. § 5E1.2(d)(3) (requiring the district court to consider “the

burden that the fine places on the defendant and his dependents”). Although the

“district court is not required to make factual findings specific to each factor set

forth in 18 U.S.C. § 3572(a) or U.S.S.G. § 5E1.2,” we have indicated that “the

record must reflect the court’s consideration of the pertinent factors and the basis

for the imposition of a fine.” Vigil, 644 F.3d at 1124.

Mr. Perez-Jiminez cannot prevail on his procedural challenge—that is, his

contention that the district court erred in failing to consider the burden that the

fine would impose on his daughter. According to the PSR, Mr. Perez-Jiminez had

no financial dependents and his daughter was eighteen years old. Mr. Perez-

Jiminez did not object to these findings. Consequently, the district court would

have been under no statutory or regulatory obligation to consider the burden of

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any fine on his daughter on the ground that she was a “dependent.” 18 U.S.C.

§ 3572(a)(2); U.S.S.G. § 5E1.2(d)(3).

In any event, the district court clearly did consider the impact of the fine on

Mr. Perez-Jiminez’s daughter. Mr. Perez-Jiminez’s counsel offered a passionate

argument against the imposition of a fine, noting that taking such an action would

be “exceptionally counterproductive” and that Mr. Perez-Jiminez’s prison savings

“should go to a place where it’s going to have a productive impact upon a human

being whose dad hasn’t been able to give her much else.” R., Vol. 2, at 44.

(Sentencing Hr’g Tr., dated July 13, 2010). The district court noted that its initial

“inclination was to issue a fine of $4,000,” but, “[i]n light of the statements that

[Mr. Perez-Jiminez’s counsel] ha[d] made,” the court “back[ed] that [fine amount]

down to 2,000.” Id. at 55–56. The district court was not required to set forth

more specific factual findings to support the fine it imposed. See Trujillo, 136

F.3d at 1398 (“To the extent Mr. Trujillo is suggesting the court must set forth

factual findings specific to each statutory factor prior to imposing a fine, we

disagree. This court imposes no such requirement. It is sufficient that the record

reflects the basis for the imposition of the fine.” (citations omitted)); accord

Vigil, 644 F.3d at 1124. Accordingly, the district court did not commit procedural

error.

C. Substantive Reasonableness: Amount of Fine

Mr. Perez-Jiminez argues that his $2000 fine was “unnecessary” and

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“excessive” because “the parties both argued that no fine should be imposed, and

the probation office recommended only a $1,000 fine.” Aplt. Opening Br. at 25.

Mr. Perez-Jiminez further contends that “the monies the district court found

significant were in fact the meager savings of Mr. Perez-Jiminez’s prison

earnings, saved over an extended period of time,” which he planned to put toward

his daughter’s education. Id. These arguments sound in substantive error because

they concern the amount of the fine that the district court imposed. See Sutton,

520 F.3d at 1262 (“Reasonableness includes a . . . substantive component

concerning the length of the sentence actually imposed.”).

“We apply a rebuttable presumption of reasonableness for sentences

imposed within the correctly calculated advisory guideline range.” United States

v. Galloway, 509 F.3d 1246, 1251 (10th Cir. 2007). “Sentence” is broadly

defined to include not just terms of imprisonment, but also terms of probation and

fines. See 18 U.S.C. § 3551(b) (“An individual found guilty of an offense shall

be sentenced . . . to . . . (1) a term of probation . . . ; (2) a fine . . . ; or (3) a term

of imprisonment . . . .”); United States v. Story, 635 F.3d 1241, 1246 (10th Cir.

2011) (“The court [in United States v. Manzella, 475 F.3d 152 (3d Cir. 2007),]

found the Sentencing Reform Act uses the term ‘sentence’ broadly to refer to

many types of punishment, including imprisonment. . . . [Section] 3551 . . .

provides that a convicted defendant may be sentenced to a fine, a term of

probation, or a term of imprisonment . . . .”); United States v. McMillan, 106 F.3d

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322, 324 (10th Cir. 1997) (“The Sentencing Guidelines clearly include fines as a

type of criminal sentence.”); see also United States v. Doe, 617 F.3d 766, 771 (3d

Cir. 2010) (“‘[I]mprisonment’ is merely one form of sentencing, whereas a

‘sentence’ might include other things such as fines, restitution, or supervised

release.”), cert. denied, 79 U.S.L.W. 3696 (2011); In re Sealed Case, 573 F.3d

844, 851 (D.C. Cir. 2009) (“[I]mposition of a sentence[ is] a broader concept that

encompasses imprisonment as well as probation and fines.”); Manzella, 475 F.3d

at 158 (“The terms ‘sentence’ and ‘imprisonment’ in the Sentencing Reform Act

are different . . . . ‘Sentence’ has [a] broad meaning. It includes many types of

possible punishment, only one of which is ‘imprisonment.’”); United States v.

Sotelo, 94 F.3d 1037, 1040 (7th Cir. 1996) (“The authorized types of

sentences . . . include the staples of punishment—a term of imprisonment,

probation, and fines.”). Accordingly, because we presume that sentences within

the Guidelines are reasonable, and a fine is merely one type of sentence available

to the district court, we will presume that a fine imposed within the Guidelines

range is reasonable. Cf. United States v. McBride, 633 F.3d 1229, 1232–33 (10th

Cir. 2011) (holding that the “presumption of reasonableness . . . [applicable to]

within-guidelines sentences imposed upon conviction . . . is also appropriate in

reviewing a revocation-of-supervised-release sentence within the range suggested

by the Commission’s policy statements”).

Moreover, because a Guidelines sentence is presumptively reasonable, it

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follows that “a below-guideline sentence is also presumptively reasonable against

an attack by a defendant claiming that the sentence is too high.” United States v.

Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quoting United States v.

Liddell, 543 F.3d 877, 885 (7th Cir. 2008)) (internal quotation marks omitted).

Thus, a below-Guidelines fine will be presumed reasonable on appeal against a

defendant’s challenge to the fine amount.

Here, the Guidelines recommended that Mr. Perez-Jiminez pay a fine in the

range of $4000 to $40,000. The district court imposed a fine on Mr. Perez-

Jiminez of $2000, well below the bottom of his Guidelines range for fines. Thus,

Mr. Perez-Jiminez’s sentence (i.e., fine) receives a rebuttable presumption of

reasonableness on appeal against his challenge that it is unreasonably harsh.

Mr. Perez-Jiminez fails to overcome that presumption. Mr. Perez-Jiminez’s

argument that his $2000 fine was “unnecessary” and “excessive” because “the

parties both argued that no fine should be imposed, and the probation office

recommended only a $1,000 fine,” Aplt. Opening Br. at 25, reflects, at most, a

difference of opinion between the parties and the district court about what an

appropriate fine should be. It does not demonstrate that the district court abused

its discretion in imposing a $2000 fine.

Nor has Mr. Perez-Jiminez carried his burden to show that he lacks the

ability to pay the fine imposed. The PSR reflects, and the district court noted,

that Mr. Perez-Jiminez had $5000 in his prison account. Moreover, the

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uncontested facts in the PSR show that Mr. Perez-Jiminez worked both before and

while being incarcerated, and that he anticipates working again after his release.

Further, the PSR indicates that Mr. Perez-Jiminez has no liabilities. See United

States v. Klein, 93 F.3d 698, 706 (10th Cir. 1996) (“Mr. Klein has failed to submit

any evidence establishing his inability to find future employment or any evidence

indicating current or future financial liabilities which would prevent him from

using his future earnings to pay the fine. . . . [His] reliance on his current

insolvency is not enough . . . .”).

The district court’s decision to impose a $2000 fine is also supported by its

consideration of “the expected costs to the government of any imprisonment.” 18

U.S.C. § 3572(a)(6); see U.S.S.G. § 5E1.2(d)(7) (requiring the district court to

consider “the expected costs to the government of any term of probation, or term

of imprisonment and term of supervised release imposed”). The district court

explicitly noted that “confining this defendant will cost over $2,000 every

month,” R., Vol. 2, at 55, and the PSR indicates that Mr. Perez-Jiminez’s monthly

cost of imprisonment is $2,157.88, R., Vol. 3, at 27.

Mr. Perez-Jiminez’s fine is entitled to a presumption of reasonableness on

appeal, which Mr. Perez-Jiminez has failed to rebut. Accordingly, the district

court did not substantively err by sentencing Mr. Perez-Jiminez to a $2000 fine.

CONCLUSION

For the reasons set forth above, we AFFIRM Mr. Perez-Jiminez’s sentence.

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