IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2008
No. 07-10788
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KENNETH WAYNE CARR
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-10-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Carr appeals the district court’s judgment, which revoked
his supervised release, sentenced him to 27 months of imprisonment, and
ordered him to pay an “outstanding restitution balance” of $5844.28. He argues
that the district court plainly erred in imposing an order of restitution because
the original judgment of conviction did not order him to pay restitution and
because the district court did not have the authority to impose restitution upon
revocation of his supervised release.
*
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should not be published and is not precedent except under the limited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. 07-10788
Because Carr did not raise this issue in the district court, review is limited
to plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).
Under the plain error standard, the appellant must show: (1) that there is an
error; (2) that the error is clear or obvious; and (3) that the error affects his
substantial rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). If these
factors are established, the decision to correct the forfeited error is within the
court’s sound discretion, which will not be exercised unless the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id. at
736.
Carr has not shown that the district court’s inadvertent reference to the
fine as restitution affected his substantial rights. In November 1993, Carr was
convicted of manufacturing amphetamine and sentenced to 120 months of
imprisonment, six years of supervised release, and a $15,000 fine. Under 18
U.S.C. § 3613(b), Carr’s liability to pay the fine terminates the later of 20 years
after entry of the judgment or his release from imprisonment, or upon his death.
See United States v. Ridgeway, 489 F.3d 732, 736–37 (5th Cir. 2007). At the time
of the revocation hearing in July 2007, Carr had a remaining balance of
$5844.28 on the fine, and he remained liable to pay the balance of the fine under
§ 3613(b). At the revocation hearing, the district court inadvertently referred to
the fine as restitution and ordered Carr to continue to pay the $5844.28 balance.
The district court’s order did not alter Carr’s obligation to pay the fine and did
not impose upon Carr a new obligation to pay an additional amount of
restitution. Therefore, Carr has not shown that the district court’s order affected
his substantial rights. See Olano, 507 U.S. at 731-37.
AFFIRMED.
2