### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A.Shumaker Clerk Chief Deputy Clerk October 14, 1997

TO: All recipients of the captioned opinion
RE: 97-6051, USA v. Medina-Rodriguez October 9, 1997
Please be advised of the following correction to th e captioned decision: On the caption page of the opinion, Chief Judge Sey mour was incorrectly identified as Circuit Judge. Please make the correction. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MIGUEL MEDINA-RODRIGUEZ, Defendant-Appellant. No. 97-6051 (W. District of Oklahoma) (D.C. No. 96-CR-112)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, and PORFILIO and MURPHY , Circuit Judges.
Having examined the briefs and the appellate record , this panel determines unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.-2-

Defendant Miguel Medina-Rodriguez pleaded guilty to illegally reentering the United States after deportation for a felony, i n violation of 8 U.S.C. § 1326(a). Following a sentencing hearing , defendant was sentenced to an eighty-six-month term of imprisonment and three years of supervised release. The district court also imposed a $1000 fine. Defendant first argues the trial court erred in imp osing the $1000 fine. Defendant specifically asserts the trial court “did not give appropriate consideration to [his] specific circumstances” befo re assessing the fine, and erred in imposing the fine because defendant is “without funds to pay a fine and is not likely to become able to do so” in the future. The Presentence Investigation Report (PSR) stated that the fine range for defendant’s offense was from $7000 to $70,000, purs uant to U.S.S.G. § 5E1.2(c)(3). The PSR also listed defendant’s work history, and stated that “[b]ased on the defendant’s work history, age, and health, it appears that he has the ability to pay a fine.” Defendant objected to this before sentencing by asserting that “[t]he defendant is incapable of pay ing a fine.” At the sentencing hearing, defendant’s counsel again objected to the PSR statement that defendant was able to pay a fine. Defendant’s counsel stated that because defendant would “probably . . . be subject to deportation” followin g his imprisonment, he would not have the ability to pay a fine. Defense counse l further stated that defendant-3- has the means and he has had means within the last two years of working. But that probably is not a reali ty. But things could change as far as him staying here. Bu t I don’t believe he is really going to be able to pay a fine. . . . Maybe I was being circuitous in addressing that , Judge. He is not capable of paying a fine. I gues s it boils down to that. The district court then stated: “Very well. The C ourt need not make a record on that because it is really not an objection.” Couns el responded: “I understand. You are right, Judge.” At the sentencing hearing, defendant’s counsel also informed the court that were defendant to be deport ed, his sister in Mexico City could offer him employment driving a taxicab, and d efendant would therefore “be able to support his family until and if he could re -enter this Country legally.” The district court’s decision to impose a fine is r eviewed under an abuse of discretion standard. See United States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1993). The Sentencing Guidelines require courts to impose fines “in all cases, except where the defendant establishes that he is u nable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a). Section 5E1.2(d) of the Guidelines sets forth factors for a district court to consider before imposing a fine. These factors include “any evidence presente d as to the defendant’s ability to pay the fine . . . in light of his earning capac ity and financial resources,” and “any collateral consequences of conviction.” U.S.S .G. § 5E1.2(d)(2), (5). The Guidelines do not, however, require the court to sp ecifically record findings-4-

addressing each factor. See United States v. Nez , 945 F.2d 341, 343 (10th Cir. 1991). Instead, “satisfactory compliance with § 5E 1.2 merely requires that the record reflect the district court’s consideration o f the pertinent factors prior to imposing the fine.” United States v. Washington-Williams , 945 F.2d 325, 328 (10th Cir. 1991). It is the defendant’s burden to prove his inabilityto pay the fine. See United States v. Klein , 93 F.3d 698, 705 (10th Cir.), cert. denied 117 S. Ct. 624 (1996). Both before sentencing and at the sentenci ng hearing, defendant failed to produce any evidence of his inability to pay a fine . Instead, defendant merely claimed that he was presently unable to pay, and ar gued at sentencing that he would be unable to do so in the future due to his p robable deportation. Defendant did not object to those portions of the PSR establi shing his ability to work and earn income. In addition, defendant’s counsel indi cated at the sentencing hearing that should he be deported, defendant had a sister who could provide him with employment. After hearing argument on the pertinent factors lis ted under § 5E1.2(d), the district court imposed a fine that was well below t he minimum amount authorized for defendant’s offense level under § 5E1.2(c)(3). Given defendant’s failure to present any evidence to support his claim that he w as unable to pay the fine, and given the evidence of defendant’s prior work history and earning capacity in the-5-

PSR, we conclude the district court did not abuse i ts discretion in imposing the $1000 fine. Defendant next asserts the district court erred whe n it did not exercise its discretion to grant a downward departure based on U .S.S.G. § 5H1.6, “family ties and responsibilities.” Defendant did not file a written motion for downwar d departure prior to sentencing. At the sentencing hearing, defendant o rally moved for a downward departure, but defense counsel did not state the sp ecific grounds for departure. Defense counsel stated that defendant was

a changed man. He came back here knowingly, but he had family obligations, economic obligations and he decided this time back in the United States he was really going to support them. I have testimony regarding that as well as from Mr. Medina-Rodriguez, as well as wh at you have in front of you in the Presentence Report about his history of employment in the last two or three years. Defense counsel then proceeded to elicit testimony about both defendant’s family circumstances and his work history. He then again urged the court to allow a downward departure, without specifying the grounds or citing a specific section of the Sentencing Guidelines. In response to defendant’s motion, the prosecutor n oted that defendant had not filed a motion for downward departure, but that

when you look at Section 5H1.6 of the Sentencing Guidelines, it seems like most of the testimony that has-6- been presented today deals with family ties and obligations. That particular guideline deals speci fically with family ties and obligations and essentially says that family ties and obligations generally shouldn’t be considered for the purpose of a downward departure. It says generally, of course. The prosecutor then argued that there were no unusu al circumstances in this case to warrant departure on these grounds. In response , defense counsel also referred to § 5H1.6, stating that the district court had dis cretionary authority to permit downward departure on those grounds. Defense couns el further cited § 5H1.5, “employment record,” and again stressed the court’s discretionary authority to depart under this section. The district court denied defendant’s motion for do wnward departure. After sentencing, the district court issued finding s, which included the following: “The Court also overruled the defendant’s oral moti on for a downward departure pursuant to USSG § 5H1.5, finding that there were n o unusual circumstances in this case to warrant a sentence outside the guideli ne range.” Defendant argues the district court erroneously dec ided not to depart “based upon the perception that [his] motion for downward departure was based on § 5H1.5 Employment Record,” rather than U.S.S.G. § 5H 1.6. He further asserts that it is unclear from the district court’s ruling whether the court recognized it had authority to depart pursuant to the “family tie s and responsibilities” guideline.-7-

This court has jurisdiction to review a district co urt’s refusal to depart downward only when “the district court refused to d epart because it erroneously interpreted the Guidelines as depriving it of the p ower to depart based on the proffered circumstances.” United States v. Barrera-Barron , 996 F.2d 244, 245 (10th Cir. 1993). Further, because “‘the district courts have become more experienced in applying the Guidelines and more fam iliar with their power to make discretionary departure decisions under the Gu idelines,’” we will not “assume that a judge’s ambiguous language means that the judge erroneously concluded that he or she lacked authority to downward depart.” United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994) (quoting Barrera-Barron , 996 F.2d at 246). Instead, “unless the judge's languag e unambiguously states that the judge does not believe [the judge] has authority to downward depart, we will not review [the judge’s] decision.” Id. The record of the sentencing hearing does not conta in a clear statement on the part of the district court indicating that it e rroneously thought it was without power to depart downward based on family circumstan ces. Instead, the record indicates the district court was clearly notified b y both the prosecutor and defense counsel that it had discretionary authority to depa rt based on family circumstances. The district court’s failure to exp ressly rule based on U.S.S.G. § 5H1.6 or to mention the court’s discretion to depart downward on this basis “does-8-

not imply a lack of understanding of that discretio n.” United States v. Rowen , 73 F.3d 1061, 1063 (10th Cir. 1996); see also United States v. Belt , 89 F.3d 710, 715 (10th Cir. 1996). Moreover, any ambiguity in the d istrict court’s ruling arises from the fact that defense counsel failed to specif y the grounds for his motion for downward departure, and then presented testimony re levant to both defendant’s family circumstances and employment record. Accord ingly, this court lacks jurisdiction to consider this allegation of error. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge