UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-7291

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY RODRIGUEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

(February 18, 1994)

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

BARKSDALE, Circuit Judge:

Johnny Rodriguez appeals from his conviction and sentence,

with the sentencing issue (the fine imposed) turning on the plain

error rule, a rule which seems to receive inconsistent application.

Doubtless, this will be righted by the Supreme Court's recent

clarification of the rule in United States v. Olano, ___ U.S. ___,

113 S. Ct. 1770 (1993). We AFFIRM.

I.

At a border checkpoint, marijuana was found in a truck. At

issue is whether Rodriguez was its driver. Following a jury trial,

he was found guilty of possession with intent to distribute 120

kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). He was sentenced to 80 months of imprisonment, followed

by five years of supervised release, and fined $1,000. 
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II.

Rodriguez contends that the district court abused its

discretion by denying a continuance; that the evidence was

insufficient to sustain his conviction, because it was insufficient

to prove that he was the driver of the truck in which the marijuana

was found; and that the fine was improperly imposed.

A.

The first challenge is to the denial of Rodriguez's motion for

trial continuance, in order to allow another attempt to serve a

subpoena on alibi witness Primativo Vega, a professional truck

driver from California. In his notice of alibi defense, Rodriguez

asserted that he was not in the truck in which the marijuana was

found; instead, that he was a passenger in a truck driven by Vega.

Rodriguez pleaded not guilty on December 1, 1992; trial was

set promptly for January 7, 1993. Three days before that setting,

Rodriguez moved for a continuance, asserting the need for

additional investigation and time in which to locate defense

witnesses. Trial was re-set for January 26. 

But, pursuant to Rodriguez's January 22 motion for a definite

trial setting and a three-week continuance in order to locate and

subpoena potential witnesses, trial was re-set for February 17,

1993. And, his February 2 motions for issuance of subpoenas for

Vega and five others were granted. 

At a pretrial conference on February 16, defense counsel

informed the court that the United States Marshals in California

had failed in four attempts to serve Vega, and requested a
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continuance of another week to attempt service. The court denied

the motion, stating that the parties had been given a special trial

setting, and that it did not appear that Vega had any interest in

coming to court. That afternoon, Rodriguez filed a motion for

continuance, asserting that the three witnesses for the alibi

defense had not been served with subpoenas; the Government opposed

the request. 

The next day (the first day of trial), defense counsel

informed the court that two of the three alibi witnesses were, or

would be, present, but that Vega was a crucial, non-served alibi

witness. Counsel proffered Vega's testimony. It was, in part:

Rodriguez abandoned his truck at a truck stop in Edinburg, Texas,

and obtained a ride with Vega and his co-driver through the

Falfurrias checkpoint, an hour's drive to the north. At the

checkpoint, they saw the truck (abandoned earlier that day by

Rodriguez) in the secondary inspection area (where the marijuana

was found). When Vega's co-driver opened Vega's trailer at the

secondary inspection area, an individual named Jose Rangel, who had

driven Rodriguez's truck from the truck stop to the checkpoint,

asked to be allowed into Vega's truck. Vega gave Rodriguez a ride

to Premont (ten miles beyond the checkpoint), and others gave him

a ride from there to San Antonio. 

Defense counsel admitted that, when he last talked to Vega, he

(counsel) knew the original trial date (January 7), but did not

give that information to Vega. Counsel also conceded that it was

possible that Vega did not want to be found. The district court
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denied a continuance, stating that, although Vega was "obviously a

very important witness", Rodriguez had had ample time in which to

secure his attendance, and there was no reason to believe that

additional time would make any difference if Vega did not want to

be found. 

The denial of a continuance is reviewed only for abuse of

discretion. United States v. Botello, 991 F.2d 189, 193 (5th Cir.

1993), cert. denied, ___ U.S. ___, 114 S. Ct. 886 (1994). And, if

the continuance is sought because 

of the unavailability of a witness, the movant must

show:

[that] due diligence has been exercised

to obtain the attendance of the witness,

that substantial favorable evidence would

be tendered by the witness, that the

witness is available and willing to

testify, and that the denial of the

continuance would materially prejudice

the defendant.

Id. (quoting United States v. Walker, 621 F.2d 163, 168 (5th Cir.

1980), cert. denied, 450 U.S. 1000 (1981)).

Obviously, assuming that Vega's testimony would have been

consistent with the proffer, it would have been "substantial

favorable testimony", as the district court noted. But, Rodriguez

failed to demonstrate due diligence in obtaining Vega's attendance.

He listed Vega in his alibi notice on January 22; when the trial

was concomitantly continued for the third time (all at Rodrigeuz's

request in order to obtain witnesses), resulting in the February 17

setting, Rodriguez had nearly four weeks in which to secure Vega's

attendance, yet he waited until two weeks before trial to request
1 After hearing all of the evidence, the district court

commented that "the reason that ... Primativo Vega wasn't here is

because it is likely that he is engaged in the commission of this

crime as well, or at least an accessory after the fact". And,

after the verdict was announced, the court stated that it was

"convinced that Primativo's absence was deliberate and he was not

able to be found because he didn't want to be found, because it is

apparent to the Court that Primativo was probably engaged at that

time in the commission of the offense of accessory after the fact".

2 A conviction for possession of marijuana with the intent to

distribute requires proof beyond a reasonable doubt that the

defendant knowingly possessed marijuana with that intent. E.g.,

United States v. Gallo, 927 F.2d 815, 821-22 (5th Cir. 1991).

"Possession may be actual or constructive, may be joint among

several defendants, and may be proved by circumstantial as well as

direct evidence". United States v. Vergara, 687 F.2d 57, 61 (5th

Cir. 1982). "Constructive possession is defined as ownership,

dominion or control over the contraband itself, or dominion or

control over the premises or the vehicle in which the contraband

was concealed". United States v. Posner, 868 F.2d 720, 722-23 (5th

Cir. 1989) (internal quotation marks and citation omitted). Intent

to distribute may be inferred from the possession of a large

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the subpoena. Moreover, he has not demonstrated that Vega would

have been willing to give favorable testimony, and risk

incriminating himself by testifying that, while giving Rodriguez a

ride, he helped Rangel escape from arrest at the checkpoint.1 See

Botello, 991 F.2d at 193 (affirming the denial of continuance,

partly because there was no reason to assume that the absent

witness would be willing to incriminate himself by testifying). 

In short, the district court did not abuse its discretion in

denying Rodriguez's eve-of-trial motion for a third continuance.

B.

Rodriguez contests his conviction, maintaining that there was

insufficient evidence to prove that he was the driver of the truck

in which marijuana was found when it was inspected at the

checkpoint.2
quantity of narcotics. United States v. Martinez-Mercado, 888 F.2d

1484, 1491 (5th Cir. 1989).

Although Rodriguez challenges his conviction, based on a

sufficiency of evidence claim, the only avenue pursued is whether

he was the driver. Accordingly, we need not consider the other

elements of proof.

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In reviewing a sufficiency of the evidence challenge, we

examine the evidence in the light most favorable to the jury's

verdict, making all reasonable inferences and credibility choices

in favor of the verdict. United States v. Montoya-Ortiz, 7 F.3d

1171, 1173 (5th Cir. 1993). The evidence is sufficient if "a

rational trier of fact could have found that [it] established guilt

beyond a reasonable doubt". Id. (quoting United States v. GardeaCarrasco, 830 F.2d 41, 43-44 (5th Cir. 1987)). "It is not

necessary that the evidence exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt.... A jury is free to choose among reasonable

constructions of the evidence". Id. (quoting United States v.

Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd, 462 U.S.

356 (1983)). Although individual facts and incidents, considered

separately, might be inconclusive, they "may, by their number and

joint operation, especially when corroborated by moral

coincidences, be sufficient to constitute conclusive proof".

United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989)

(internal quotation marks, brackets, and citation omitted).

Border Patrol agent Gill testified that he was stationed at

the Falfurrias checkpoint on June 6, 1992, when a 1986 red

Peterbilt truck arrived at 2:15 a.m. At trial, Gill identified
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Rodriguez as the driver. Rodriguez told Gill that he was a United

States citizen and was carrying a load of watermelons. While

talking to Rodriguez, Gill noticed that he was nervous; that there

was a heavy odor of cologne emanating from the cab of the truck,

which Gill thought might be masking the smell of narcotics; and

that the dates on the bill of lading had been altered. Gill

referred the truck to the secondary inspection area. 

Gill was using a flashlight at the primary inspection area and

got "a fairly good look" at Rodriguez; got a "real good look" at

the secondary inspection area, after Rodriguez opened the doors of

the trailer, because Rodriguez was "right next to" him, standing

only about a foot away; got another "real good look" when asking

for permission to search the cab of the truck because, again,

Rodriguez "was standing right next to" Gill; and, finally, got a

similar good look at Rodriguez when he (Gill) was beginning to

climb into the cab of the truck because, once again, Rodriguez "was

standing right next to" him. Although it was dark, Gill had a

powerful flashlight, light from light poles, and the lighting in

the truck, which enabled him to observe Rodriguez. Nearly four

months later, Gill viewed a photographic lineup and identified

Rodriguez as the driver. 

Rodriguez appeared nervous and his hands trembled when Gill

asked for permission to search the cab, but he consented. Inside

the cab, in the sleeper compartment behind the driver's seat, Gill

found several bundles of marijuana, which weighed approximately 265
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pounds. But, when he turned to arrest Rodriguez, he had

disappeared. 

Border Patrol agent Shaffer testified that the next vehicle to

enter the checkpoint after the red truck was another 18-wheeler,

driven by Vega; that Vega was extremely nervous; and that no one

else was in the cab of his truck. Vega's truck was inspected by

Shaffer and was also carrying watermelons, and the dates on the

bill of lading also appeared to have been altered. Shaffer

directed Vega to the secondary inspection area, and Vega pulled up

alongside the red truck. 

While Shaffer was inspecting Vega's trailer, Gill informed him

that the driver of the red truck was missing. Shaffer told Vega to

leave the checkpoint, and Vega jumped into the cab and "took off".

Shaffer helped Gill search unsuccessfully for the driver of the red

truck. Shaffer testified that the driver could not have left the

checkpoint on foot unless he was extremely fast and ran down the

highway 300-400 yards before anyone saw him missing -- a feat that

Shaffer did not believe physically possible. 

Truck broker David Zapata testified that Rodriguez worked for

Garza Trucking Company in California; that he drove a red Peterbilt

truck; and that he last saw Rodriguez in his (Zapata's) office

around 11:00 a.m. on June 5, 1992. Rodriguez was accompanied by

Vega. Zapata gave them orders to pick up watermelons, and gave

Rodriguez $50 to repair a tire on his truck. Andy Lozano, a

produce salesman, testified that he saw Rodriguez in a red truck at

the Farmer's Market Service on June 5, at about 1:00 p.m., picking
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up watermelons. Zapata testified that Rodriguez telephoned him

that afternoon, around 4:00 p.m., stating that his truck was being

loaded and asking for advance money so that he could leave that

evening. Zapata advanced $250. 

Jose Morales, who worked as a cashier at the 76 Truck Stop in

Edinburg, testified that at 11:30 p.m. on June 5, he saw Rodriguez

in the tire bay at the truck stop. Around midnight, he saw

Rodriguez driving away from the truck stop; he knew it was

Rodriguez because he was about five yards away, the light was good,

and they waved at each other. (As noted, Edinburg is approximately

an hour's drive south of the Falfurrias checkpoint.) 

Vildo Garza, a truck driver, testified that he arrived at the

76 Truck Stop at approximately 11:30 p.m. on June 5. He saw

Rodriguez inside the store, and he (Rodriguez) asked Garza for a

ride to San Antonio. Rodriguez told him that there were two

drivers for his (Rodriguez's) truck, and he (Garza) saw the other

driver sitting in Rodriguez's truck while it was in the tire bay at

the truck stop. Garza told Rodriguez that he was not going to San

Antonio, drank coffee with him, and left after midnight. Jimmy

Castro, another truck driver who worked for the same company as

Garza, followed him from the truck stop to the Falfurrias

checkpoint. 

When Garza arrived at the checkpoint, he saw Rodriguez's

truck, and another truck next to it, in the secondary inspection

area. Garza and Castro proceeded through the checkpoint and

stopped at a cafe in Premont, about ten miles past the checkpoint.
3 Drug Enforcement Agency task force officer Will Bussey

testified that on June 9, 1992, Sally and Ralph Garza of Garza

Trucking Company showed him documents indicating that Rodriguez was

the driver of the truck in which the marijuana had been found three

days earlier; and that a driving log for Rodriguez was found in

that truck. Vildo Garza is not related to Ralph or Sally Garza. 

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As they were entering the cafe, another truck arrived; it appeared

to be the same truck that had been stopped at the checkpoint beside

Rodriguez's. Garza testified that Rodriguez was sitting in the cab

of that truck, beside the driver. And, when he drove away from the

cafe, Garza saw that Rodriguez had moved to Castro's truck. 

A few weeks prior to trial, Garza spoke with Rodriguez. Garza

testified that Rodriguez wanted him to talk to his (Rodriguez's)

lawyer. When Garza asked Rodriguez, "Well, what's it about?",

Rodriguez responded, "Well, about what happened down there". And,

when Garza asked, "Well, how did you do it", Rodriguez replied, "I

escaped". 

Sally Garza, owner of the truck in which the marijuana was

found, testified that she telephoned Rodriguez at his home in San

Antonio on June 6; that Rodriguez told her that he had left the

truck at the 76 Truck Stop because its personnel were rude to him

and did not want to change a tire; and that he had obtained a ride

to San Antonio with Vildo Garza.3 

Rodriguez did not testify; he called two witnesses. David

Zapata, the truck broker who testified as a prosecution witness,

testified that Rodriguez told him that he abandoned the truck

because he had an argument with the owner. 
4 When asked if the name of the driver who gave Rodriguez a ride

was "Primativo Vega", Castro responded: "Yes, sir. The last name

I don't know, sir. Just Primativo." 

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The other witness, truck driver Castro, referred to earlier by

Vildo Garza, testified that he was at the 76 Truck Stop in Edinburg

on June 5, and did not see Rodriguez there. He saw the red

Peterbilt truck leave the truck stop, but could not see who was

driving it, because the glass was tinted. He saw the driver of the

red truck at the checkpoint, but did not recognize him; he did not

see Rodriguez there. 

Castro testified that when he came out of the cafe in Premont

(past the checkpoint), where he had coffee with Garza, Rodriguez

was sitting in his (Castro's) truck. Rodriguez was nervous, and

stated that he had quit his job, had left the truck at the truck

stop, and had obtained a ride from there to Premont with

"Primativo" (Vega).4 Castro gave Rodriguez a ride to San Antonio.

Noel Garcia, a tire repairman at the 76 Truck Stop, was called

as a rebuttal witness for the Government. He testified that from

11:30 p.m. until midnight on June 5, he was working on a tire on

the truck that Rodriguez was driving that day. He did not see

anyone sitting inside the truck while it was in the tire bay. At

12:15 or 12:30 p.m., he observed that the truck had left; and he

did not see it again. 

This issue presents the quintessential jury question; no

factor or basis is presented to take it outside that realm. It

bears repeating that it is for the jury, not an appellate court, to

make credibility choices, as well as to "choose among reasonable
5 A defendant may rely on the PSR to establish his inability to

pay a fine. United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.

1992).

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constructions of the evidence". Under our system of justice, the

jury sits to hear the evidence and, based on that evidence and the

court's charge, to render a verdict. As is obvious from the above

recitation of the evidence, "a rational jury" could easily find

that Rodriguez drove the red truck into the checkpoint on June 6,

1992, and abandoned it there after Agent Gill discovered the

marijuana. In fact, in light of our properly restricted standard

of review, Rodriguez's insufficiency claim borders on being

frivolous.

C.

Rodriguez contends that the district court improperly imposed

a $1,000 fine "to help defray the cost of his [court-appointed]

attorney". It is to be paid during his 80 months imprisonment,

with any balance to be paid during the first year of supervised

release. He raises three separate grounds: two are legal issues,

concerning statutory and guideline authority vel non; and one

concerns his being entitled to rely on the presentence report,

which indicated that he had no present ability to pay the fine.5

A district court's finding on a defendant's ability to pay a

fine is a factual one, subject to appellate review under the

clearly erroneous standard. See, e.g., United States v. Thomas,

___ F.3d ___, ___, 1994 WL 13820, at *2 (5th Cir. 1994) (citing

United States v. Favorito, 5 F.3d 1338 (9th Cir. 1993)). And,

"[a]pplication and interpretation of the guidelines are questions
6 In a separate Sentencing Recommendation, sealed pursuant to

Fed. R. Crim. P. 32(c)(3), the probation officer recommended a

$1,000 fine "to help defray costs involved in bringing this

defendant before the Court and also for his jury trial". We assume

that this recommendation was not disclosed to the parties, pursuant

to Fed. R. Crim. P. 32(c)(3)(A), which excludes "any final

recommendation as to sentence" from the disclosure requirements. 

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of law subject to plenary review". E.g., United States v. Sosa,

997 F.2d 1130, 1131-32 (5th Cir. 1993).

The PSR, in the paragraph entitled "Financial Condition:

Ability to Pay", states:

The defendant claims to have no assets nor

liabilities.... The defendant is currently

incarcerated and his wife and family are living off

government assistance.... The defendant would,

therefore, have an approximate net worth of $0.00

and an approximate annual income of $0.00. 

The PSR earlier states, however, that Garcia, who was then 45 years

of age, is in good health, has an eleventh-grade education, and has

vocational skills as a truck driver, having so earned from $350 to

$450 a week from 1978 until his incarceration. Moreover, in the

section entitled "Fines", it states that the maximum statutory fine

is $2,000,000, and that the guideline fine range is $12,500 to

$2,000,000. But, it did not make a recommendation regarding a

fine.6

Neither Rodriguez nor the Government objected to the PSR.

More importantly for this case, when the district court imposed the

fine at the sentencing hearing, Rodriguez did not object.

Therefore, he seeks to challenge the fine for the first time on

appeal.
7 Rodriguez did not file a reply brief in response to the

Government's brief, which urged the plain error standard of review.

At oral argument, his counsel asserted that the issue should be

reviewed de novo. Needless to say, a reply brief containing such

an assertion, with supporting authorities, should have been filed.

Although a reply brief is not mandatory, see Fed. R. App. P. 28(c),

it is the best vehicle for narrowing the true issues, and is

especially important -- and called for -- when a new point or issue

(such as application of the narrow plain error standard of review)

is raised in the appellee's brief.

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As our court recently reiterated, "[w]e will allow sentences

to be attacked on grounds raised for the first time on appeal in

only the most exceptional cases. A party must raise a claim of

error with the district court in such a manner so that the district

court may correct itself and thus, obviate the need for our

review." United States v. Bullard, ___ F.3d ___, ___, 1994 WL

18032, at *1 (5th Cir. 1994) (footnote omitted); see also United

States v. Garcia-Pillado, 898 F.2d 36, 40 (5th Cir. 1990) ("the

proper administration of justice, particularly our now severely

strained criminal justice system, will be unduly hampered by any

rule or practice which allows sentences to be attacked on grounds

raised for the first time on appeal in any but the most exceptional

cases"). 

In other words, we will review this belated challenge "only

for plain error".7 United States v. Brunson, 915 F.2d 942, 944

(5th Cir. 1990); see also United States v. Gross, 979 F.2d 1048,

1052 (5th Cir. 1992) ("If a defendant fails to object to his

sentence, this court will reverse his sentence only upon a finding

of plain error".); United States v. Navejar, 963 F.2d 732, 734 (5th

Cir. 1992) ("Navejar did not object to these alleged errors during
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the sentencing hearing and, accordingly, he may not raise this

objection for the first time on appeal absent plain error".);

United States v. Matovsky, 935 F.2d 719, 722 (5th Cir. 1991)

("Where the presentence report makes no recommendation concerning

the fine, and the defendant neither presents evidence on nor

objects to the amount of the fine assessed within the guideline

range, the defendant may not raise new objections in this court

absent plain error."). 

Federal Rule of Criminal Procedure 52(b) provides that

"[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the

court". Fed. R. Crim. P. 52(b). The Supreme Court recently

clarified an appellate court's "limited power [under Rule 52(b)] to

correct errors that were forfeited because not timely raised in the

District Court." United States v. Olano, ___ U.S. ___, 113 S. Ct.

1770, 1776 (1993). Four factors come into play. 

First, there must be an "error". Id. at 1777. "Deviation

from a legal rule is `error' unless the rule has been waived". Id.

Second, the error must be "plain". Id. "`Plain' is

synonymous with `clear' or, equivalently, `obvious'". Id. 

Third, the error must "affec[t] substantial rights". Id. at

1777-78 (internal quotation marks omitted). "Normally, although

perhaps not in every case, the defendant must make a specific
8 In Olano, the Court noted the burden of persuasion shift

between showing "plain error" under Rule 52(b), as opposed to

"harmless error" under Rule 52(a):

When the defendant has made a timely objection to

an error and Rule 52(a) applies, the Court of

Appeals normally engages in a specific analysis of

the District Court record -- a so-called "harmless

error" inquiry -- to determine whether the error

was prejudicial. Rule 52(b) normally requires the

same kind of inquiry, with one important

difference: It is the defendant rather than the

Government who bears the burden of persuasion with

respect to prejudice. In most cases, the Court of

Appeals cannot correct the forfeited error unless

the defendant shows that the error was

prejudicial.... This burden-shifting is dictated by

a subtle but important difference in language

between the two parts of Rule 52: while Rule 52(a)

precludes error-correction only if the error "does

not affect substantial rights" (emphasis added),

Rule 52(b) authorizes no remedy unless the error

does "affec[t] substantial rights."

United States v. Olano, ___ U.S. ___, 113 S. Ct. at 1778. Olano

was handed down four days after sentencing in this case. As

discussed infra, Rodriguez has not made the requisite showing of

prejudice; he has not even attempted to.

9 See, e.g., United States v. Frady, 456 U.S. 152, 163 (1982)

("error so `plain' the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant's timely assistance in

detecting it"); United States v. Martinez-Cortez, 988 F.2d 1408,

1411 (5th Cir.) ("a mistake so fundamental that it constitutes a

`miscarriage of justice'"), cert. denied, ___ U.S. ___, 114 S. Ct.

605 (1993); United States v. Lopez, 923 F.2d 47, 50 (5th Cir.)

(citations omitted) ("plain error occurs where our failure to

consider the question results in `manifest injustice'"), cert.

denied, ___ U.S. ___, 111 S. Ct. 2032 (1991); United States v.

Thetford, 676 F.2d 170, 180 n.19 (5th Cir. 1982), cert. denied, 459

U.S. 1148 (1983) ("Plain error exists only if it affects

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showing of prejudice to satisfy the `affecting substantial rights'

prong of Rule 52(b)". Id. at 1778.8 

The final, and fourth factor, concerns the appellate court's

discretion. Although plain error has been defined in various

ways,9 "the ultimate decision whether or not to take notice of an
substantial rights of a party so basic that the infraction can

never be treated as harmless error"), cert. denied, 459 U.S. 1148

(1983); United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.

1980) ("[p]lain error is error which is `both obvious and

substantial'"), cert. denied, 450 U.S. 920 (1981); United States v.

Jacquillon, 469 F.2d 380, 386 (5th Cir. 1972) (application of the

plain-error rule "is limited to exceptional situations involving

serious deficiencies which affect the fairness, integrity, or

public reputation of the judicial proceedings"), cert. denied, 410

U.S. 938 (1973); United States v. Flanagan, 445 F.2d 263, 265 (5th

Cir. 1971) ("so palpably flagrant as to affect ... substantial

rights"), cert. denied, 404 U.S. 1060 (1972).

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error not raised below must depend on the facts of the particular

case". United States v. Morales, 477 F.2d 1309, 1315 (5th Cir.

1973) (footnote omitted). "The matter of what questions may be

taken up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be

exercised on the facts of individual cases". Singleton v. Wulff,

428 U.S. 106, 120 (1976). In Olano, the Supreme Court reaffirmed

this principle:

Rule 52(b) is permissive, not mandatory. If

the forfeited error is "plain" and "affect[s]

substantial rights," the Court of Appeals has

authority to order correction, but is not required

to do so. The language of the Rule ("may be

noticed"), the nature of the forfeiture, and the

established appellate practice that Congress

intended to continue, all point to this conclusion.

United States v. Olano, ___ U.S. ___, 113 S. Ct. at 1778. Olano

provides that "the standard that should guide the exercise of [our]

remedial discretion under Rule 52(b)" is the oft-quoted one

articulated in United States v. Atkinson, 297 U.S. 157 (1936):

The Court of Appeals should correct a plain

forfeited error affecting substantial rights if the

error "seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings."
10 Some of our pre-Olano cases seem to imply that factual issues

are not subject to review under the plain error standard. See,

e.g., United States v. Garcia-Pillado, 898 F.2d at 39 (emphasis

added) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.

1985)) ("issues raised for the first time on appeal `are not

reviewable by this court unless they involve purely legal questions

and failure to consider them would result in manifest injustice'").

Others imply that a factual issue may be reviewed for plain error,

but only if the failure to consider it would constitute a

miscarriage of justice. See, e.g., United States v. Lopez, 923

F.2d at 50 (emphasis added) ("when a new factual or legal issue is

raised for the first time on appeal, plain error occurs where our

failure to consider the question results in `manifest injustice'");

Atlantic Mut. Ins. Co. v. Truck Ins. Exch., 797 F.2d 1288, 1293

(5th Cir. 1986) (emphasis added) ("An issue raised for the first

time on appeal generally is not considered unless it involves a

purely legal question or failure to consider it would result in a

miscarriage of justice"). In Lopez, our court stated that

"[q]uestions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain

error", and that "[f]or a fact issue to be properly asserted, it

must be one arising outside of the district court's power to

resolve". 923 F.2d at 50. We need not resolve this apparent

conflict, including with Olano, in light of our decision to

exercise our discretion to decline to review Rodriguez's challenge

to the fine.

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United States v. Olano, 113 S. Ct. at 1779 (quoting Atkinson, 297

U.S. at 160).10 The Court concluded:

An error may "seriously affect the fairness,

integrity or public reputation of judicial

proceedings" independent of the defendant's

innocence. Conversely, a plain error affecting

substantial rights does not, without more, satisfy

the Atkinson standard, for otherwise the discretion

afforded by Rule 52(b) would be illusory.

Id.

Guided by that standard, we decline to exercise our discretion

to review Rodriguez's challenge to the fine. Even assuming an

"error" that is "plain", he has not shown that his "substantial

rights" have been "affect[ed]". Moreover, the "fairness, integrity

or public reputation of judicial proceedings" are not implicated by
11 See United States v. Altamirano, 11 F.3d 52, 53 (5th Cir.

1993) (emphasis added) (citing U.S.S.G. § 5E1.2(a) (Nov. 1992))

(the Guidelines require a fine "unless the defendant establishes

that he cannot pay and is not likely to become able to pay"); id.

("Neither the Constitution, nor applicable sentencing statutes and

guidelines ... categorically prohibit a court from ever imposing a

fine after the defendant has proven his inability to pay"); United

States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) (same). See

also id. at 155 n.14 (fine may be based on defendant's future

ability to pay); United States v. O'Banion, 943 F.2d 1422, 1432

n.11 (5th Cir. 1991) (same); United States v. Matovsky, 935 F.2d at

722-23 (same).

12 See also United States v. Vontsteen, 950 F.2d 1086, 1090 (5th

Cir.) (en banc), cert. denied, ___ U.S. ___, 112 S. Ct. 3039 (1992)

(quoting Wayne R. LaFave and Jerold H. Israel, 3 Criminal Procedure

§ 26.5 at 251-52 (West 1984) (footnote omitted)) (discussing "many

rationales for the raise-or-waive rule").

- 19 -

the imposition of a $1,000 fine -- a downward departure from the

range of $12,500 to $2,000,000 -- payable over a period of 92

months (80 months in prison and 12 months on supervised release),

upon a defendant who is in good health and has earned $350 to $450

weekly as a truck driver for nearly 14 years prior to his

incarceration for the instant offense. Needless to say, our

decision to not review the issue will not result in a miscarriage

of justice.11

As stated at the start of this discussion, one of the obvious,

and most salutary, purposes of the plain error rule "is to enforce

the requirement that parties object to errors at trial in a timely

manner so as to provide the trial judge an opportunity to avoid or

correct any error, and thus avoid the costs of reversal". United

States v. Chaney, 662 F.2d 1148, 1151 n.4 (5th Cir. 1981).12

Although there was no reason for Rodriguez to file objections to

the PSR, inasmuch as it neither recommended a fine nor contained
- 20 -

information reflecting that he had the present ability to pay one,

there was no reason why he could not have objected when the fine

was imposed at the sentencing hearing. "Despite ample opportunity

to raise this matter below and to express any dissatisfaction [he]

might have with the sentence, [Rodriguez] did neither". See United

States v. Garcia-Pillado, 898 F.2d at 39. He did not give any

indication of his dissatisfaction until he filed his appellate

brief. If it were so critical that Rodriguez not be fined, surely

something would have been said about it at sentencing. "There is

no reason whatever for [Rodriguez] to have failed to call this

matter to the district court's attention while that court still had

the case under its jurisdiction or to then express [his]

dissatisfaction with the sentence". Id.

III.

For the foregoing reasons, the conviction and sentence are

AFFIRMED.