UNITED STATES of America, Plaintiff-Appellee, v. Ramiro REYES-SANCHEZ, also known as Ramiro Sanchez-Sanchez, also known as Reyes Ramiro Sanchez, also known as Ovidio Mejilla-Escorcia, also known as Daniel Pena, Defendant-Appellant.
No. 12-30734
United States Court of Appeals, Fifth Circuit.
March 12, 2013.
Summary Calendar.
Ramiro Reyes-Sanchez, pro se.
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ramiro Reyes-Sanchez (Reyes) appeals his 20-month sentence of imprisonment and $5000 fine imposed following his guilty-plea conviction for being found unlawfully present in the United States following deportation. Reyes argues that the district court failed to provide adequate reasons for making a variance six months
Because Reyes did not specifically object in the district court to the district court‘s failure to articulate adequate reasons for the sentence, review is for plain error. See Puckett v. United States, 556 U.S. 129, 134-35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009). In imposing a sentence six months above the guidelines range, the district court considered the arguments of the parties, Reyes‘s criminal conduct and history, the need for deterrence, and the protection of the public. The record reflects that the district court gave fact-specific reasons for the variance, which included consideration of the relevant
Insofar as Reyes objected in the district court to the reasonableness of the sentence, he has not shown that the variance reflected an abuse of discretion on the part of the district court, and thus, he has not demonstrated that the sentence was substantively unreasonable. See Gall, 552 U.S. at 51; Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Reyes also challenges the fine imposed, arguing that it is substantively unreasonable because the district court ignored the statement in the presentence report (PSR) reflecting his inability to pay a fine based on his then-current financial status. He contends that the district court was required to make specific findings to support the fine, and he also complains about paying a portion of the fine out of his prison wages.
This court reviews the reasonableness of a defendant‘s sentence, including a fine, for abuse of discretion. See United States v. McElwee, 646 F.3d 328, 338-39, 340 n. 8 (5th Cir.2011). Reyes did not object to the district court‘s consideration of his future earning capacity in imposing the fine, and thus, that argument is reviewed for plain error. See Puckett, 556 U.S. at 135.
The Guidelines state that “[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.”
The district court‘s ruling was not contrary to the PSR‘s recommendation based on Reyes‘s then-current financial status because the district court imposed the fine based on Reyes‘s future ability to pay the fine. Furthermore, although not required to do so, the district court provided specific reasons for its determination that Reyes had the future ability to pay the fine. It pointed out that Reyes had prior work experience and would be only 35 years old when his sentence was completed and that he had reported no physical or mental problems precluding his employment.
The district court was also entitled to order Reyes to have a portion of any income earned in prison attributed to the payment of the fine. See United States v. Brantley, 537 F.3d 347, 351-52 (5th Cir.2008) (affirming the imposition of a fine in part on the defendant‘s ability to pay installments from his prison wages). The fact that the fine may impose a financial burden upon him is not grounds to vacate the fine. See United States v. Matovsky, 935 F.2d 719, 723 (5th Cir.1991). The district court did not abuse its discretion in imposing the fine. The sentence is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne LEWIS, Defendant-Appellant.
No. 12-50367
United States Court of Appeals, Fifth Circuit.
March 12, 2013.
Summary Calendar.
Kenneth Wayne Lewis, pro se.
Before KING, CLEMENT, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Lewis, federal prisoner # 11311-280, moves in this court for leave to proceed in forma pauperis (IFP) on appeal from the district court‘s denial of his
He does not challenge the district court‘s determination that he was ineligible for a sentence reduction. Thus, Lewis has abandoned any challenge to that determination. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (issues not adequately briefed by pro se appellant are waived). Because the district court determined that Lewis was ineligible for a sentence reduction, it did not err or abuse its discretion by not considering the
Lewis has not shown that his appeal involves “legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.1983).