United States v. Krystal Collins , 353 F. App'x 301 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 18, 2009
No. 08-10458 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00026-CR-BAE-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KRYSTAL COLLINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 18, 2009)
Before DUBINA, Chief Judge, BIRCH and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Krystal Collins appeals the district court’s imposition of a $3,000
fine as part of her sentence for conspiracy to possess with the intent to distribute,
and to distribute, 50 grams of cocaine base (“crack cocaine”) and 5 kilograms of
cocaine hydrochloride (“powder cocaine”), in violation of 21 U.S.C. § 846. On
appeal, Collins argues that the district court plainly erred by finding that she had
the ability to pay a fine and by imposing the $3,000 fine without articulating its
consideration of the factors under U.S.S.G. § 5E1.2(d) (2007).
When a defendant does not object to a fine, as in the present case, we will
only reverse for plain error. United States v. Hernandez, 160 F.3d 661, 665 (11th
Cir. 1998). Accordingly, Collins must establish that (1) an error occurred, (2) the
error was plain, and (3) it affected her substantial rights. United States v. Beckles,
565 F.3d 832, 842 (11th Cir.), cert. denied, ___ S. Ct. ___ (U.S. Oct. 5, 2009) (No.
09-5482). If these three conditions are satisfied, we may notice a forfeited error,
but only if (4) such error seriously affected “the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (internal quotation marks omitted).
Pursuant to the Sentencing Guidelines, a district court is required to impose
a fine unless the defendant satisfies her burden of establishing that she is unable to
pay a fine. U.S.S.G. § 5E1.2(a); Hernandez, 160 F.3d at 665. If the defendant is
unable to pay a fine within the guideline range, “the district court may impose a
fine below the applicable range, or no fine at all.” United States v. Rowland, 906
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F.2d 621, 623 (11th Cir. 1990). The court must consider the following factors in
determining such an amount:
(1) the need for the combined sentence to reflect the seriousness of the
offense (including the harm or loss to the victim and the gain to the
defendant), to promote respect for the law, to provide just punishment
and to afford adequate deterrence;
(2) any evidence presented as to the defendant’s ability to pay the fine
(including the ability to pay over a period of time) in light of his
earning capacity and financial resources;
(3) the burden that the fine places on the defendant and his dependents
relative to alternative punishments;
(4) any restitution or reparation that the defendant has made or is
obligated to make;
(5) any collateral consequences of conviction, including civil
obligations arising from the defendant’s conduct;
(6) whether the defendant previously has been fined for a similar
offense;
(7) the expected costs to the government of any term of probation, or
term of imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
U.S.S.G. § 5E1.2(d).
The district court is not required to make specific findings regarding the
factors as long as the record reflects that it considered them in imposing a fine.
Hernandez, 160 F.3d at 665-66. Where the defendant does not object to the fine,
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the court has “no notice of the need to make further findings.” Id. at 666. If the
record does not provide any guidance as to the court’s reasons for imposing a fine,
however, we must remand for it to make the necessary factual findings. Id.In Hernandez, the presentence investigation report (“PSI”) stated that the
defendant did not have the ability to pay a fine within the guideline range, but the
district court imposed a fine of $3,000 on each of 3 counts, totaling $15,000. Id. at
665. We held that, while the record did not indicate what § 5E1.2(d) factors the
district court relied on, it did not plainly err by imposing the fine because (1) the
defendant owned a $500,000 home and a $500,000 yacht prior to filing for
bankruptcy, (2) the PSI indicated that he was waiting for the bankruptcy
proceedings to conclude to accept the remaining payments from the sale of a
fast-food franchise, and (3) he did not willingly answer the probation officer’s
questions about his financial dealings, from which it could be inferred that he had
concealed assets. Id. at 666.
In another case, we held that the district court’s imposition of a $2,000 fine
payable at a rate of less than $56 per month was not clear error where the district
court considered the defendant’s “current financial situation and future prospects,”
including his pre-prison income of $17,000, and departed downward from the
guideline range of $10,000 to $100,000. United States v. Long, 122 F.3d 1360,
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1366 n.9, 1367 (11th Cir. 1997); see also United States v. McGuinness, 451 F.3d
1302, 1308 (11th Cir. 2006) (holding that the district court did not clearly err by
imposing a low-end guideline range fine of $4,000 where the defendant failed to
establish present and future inability to pay and admitted to possessing hidden
assets).
By contrast, in Rowland, where the defendant had only $8,000 in assets,
earned between $100 and $125 per week, had child support obligations, and was
appointed counsel due to indigency, we vacated and remanded the district court’s
order imposing a $50,000 fine based solely on the $35,000 found on the
defendant’s person—and seized by police as drug proceeds—at the time of his
arrest because there was “no other evidence that [he] [would be] able to pay a fine
of this magnitude, either immediately or in the future.” Rowland, 906 F.2d at
623-24; and see United States v. Paskett, 950 F.2d 705, 709 (11th Cir. 1992)
(vacating and remanding a $100,000 fine based solely on the $1 million found in
the defendant’s bedroom during a search for evidence of money laundering, where
the record contained insufficient evidence of her ability to pay a fine of that
magnitude).
First, the record here demonstrates that the district court implicitly
considered the § 5E1.2(d) factors, including the burden a fine would cause, before
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imposing a fine of $3,000, which fell substantially below the guideline range of
$10,000 to $1,000,000. Second, evidence in the record concerning Collins’s
education and finances, including her lengthy earnings history, suggests that she
had the ability to pay such an amount over time. Accordingly, we conclude that
the district court did not commit plain error, and we affirm Collins’s sentence.
AFFIRMED.
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