* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-30786

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES KEVIN HODGES,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the 

Western District of Louisiana

(96-CR-10002-01)

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July 27, 1998

Before EMILIA M. GARZA, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

This is the second time that this case has appeared before

this court. The appellant, James Kevin Hodges, now appeals the

district court’s re-imposition of a $10,000 fine against him as

part of his criminal sentence. For the reasons set forth below, we

AFFIRM.

On March 14, 1996, Hodges was indicted on one count of assault

with a sawed-off shotgun, in violation of 18 U.S.C. § 113(a)(3).
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On March 27, 1996, Hodges pleaded guilty pursuant to a written plea

agreement. At sentencing, the district court adopted the factual

findings and guideline applications contained in the Presentence

Investigation Report (PSR) and sentenced defendant to serve 27

months in prison to be followed by a three-year term of supervised

release. The court also imposed a $10,000 fine. Defendant timely

appealed his sentence.

On appeal, this court affirmed the 27-month sentence but,

because the PSI contained facts suggesting that the defendant would

have difficulty paying the fine imposed, vacated the $10,000 fine

and remanded the case to the district court for specific findings

which would satisfy the requirements of United States v. Fair, 979

F.2d 1037, 1041 (5th Cir. 1992). Specifically, the court held:

“The holding in Fair is narrow -- where a district court adopts,

and a defendant relies upon, a PSR showing limited ability to pay,

the government must come forward with evidence and the court must

make specific findings before a fine may be imposed.” 

On remand, the district court held a hearing, at which Hodges

refused to testify. The government, however, presented the

testimony of the probation officer who prepared the PSI, who stated

that Hodges had previously been employed as a maintenance

supervisor, earning $26,000 per year, and as an engineering

manager, earning $31,500 per year. The probation officer further

testified that Hodges had also previously attended college classes

in air conditioning and refrigeration, electronics, and computer
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literacy. Finally, and signficantly for the purposes of this

appeal, the probation officer testified that she saw no reason why

Hodges should not be able to find employment once released. 

On the basis of the testimony presented at the hearing, the

district court found that Hodges had held jobs in the past, that he

had the mental capacity to hold a job, that it was “quite likely”

that he would hold a job in the future, and that there was no

reason why he could not have an earning capacity of substance and

pay the $10,000 fine in the future. Accordingly, the district

court reimposed the $10,000 fine. 

After reviewing the record, we are unable to say that these

findings of fact are clearly erroneous. See United States v.

Goodman, 914 F.2d 696, 697-98 (5th Cir.1990). In addition,

notwithstanding the fact that these findings were based, to a large

extent, on evidence contained in the original PSR, we find that the

district court’s findings complied with the scope of our previous

remand. In this respect, we note that the PSR did not simply

conclude that Hodges would have difficulty paying any fine.

Rather, the PSR continued: “However, should Mr. Hodges secure

employment upon his release from custody, the likelihood of paying

a fine will be substantially increased.” PSR ¶ 63. As noted,

after holding an evidentiary hearing, the district court

specifically found that he would likely secure employment in the

future that would enable him to pay the $10,000 fine. This finding

was based not only of Hodges’s educational and vocational
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experience, which were also contained in the PSR, but on the new

testimony of the probation officer, who testified that she saw no

reason why Hodges should not be able to find employment once

released. Such a finding clearly negates the concerns of the

previous panel -- i.e., that the district court may have imposed a

fine despite a finding in the PSI, which the district court

originally adopted, that Hodges would have difficulty paying any

fine. Moreover, we note that, to the extent that the passage of

time proves these findings erroneous, the district court expressly

indicated that it would reconsider the fine at that time. 

For the reasons set forth above, we AFFIRM.