PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MAGDIEL SANCHEZ-URIAS, Defendant - Appellant. No. 17-1166

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00372-MSK-1)

________________ _________________ Dean Sanderford, Assistant Fe deral Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denve r, Colorado, for De fendant-Appellant. Paul Farley, Assistant United States Attorn ey (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colora do, for Plaintiff-Appellee.

________________ _________________ Before HARTZ , SEYMOUR , and PHILLIPS , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Defendant Magdiel Sanchez- Urias pleaded guilty in th e United States District Court for the District of Colorado to illegally reentering the country after being deported. See 8 U.S.C. § 1326(a). The court imposed a sentence that included a $1,000 fine. Defendant appeals, arguing that he cannot affo rd the fine. Exercising jurisdiction under FILED United States Court of Appeals Tenth Circuit 

### April 17, 2018 Elisabeth A. Shumaker Clerk of Court2 28 U.S.C. § 1291, we affirm. Defendant bore the burden to show that he lacked the assets to pay the fine. But he refused to pr ovide financial information at his presentence interview, and the district court did not clearl y err in finding on the record before it that Defendant had not es tablished his inability to pay. Defendant’s presentence investigation repo rt (PSR), prepared on April 4, 2017, states that “[u]pon advice of counsel, [Defenda nt] did not provide financial information at the time of the presentence inte rview.” R., Vol. 2 at 36. But the record contains other evidence of his financial status . Perhaps most help ful to him is the st atement in the PSR that Laura Trevino—who had been in a “seri ous relationship” with Defendant for about a year—said that Defendant “ha[d] no assets or debts.” Id. at 34, 36. Even if truthful, however, this statement was ba sed on dated information: at sentencing in early May, defense counsel advised that the relationship had ended “some months” earlier. R., Vol. 3 at 42. More importantly, the record cont ains other evidence that Defendant had some financial wherewithal. The PSR reports that be fore his arrest he had been sending about $150 a week to his family and $100 a month to the mother of his child in Mexico. And the financial affidavit he submitted in Decem ber 2016 to obtain appointed counsel states that he was earning $3,000 a month, paid mont hly rent of $900, and had more than $300 in a bank account. The district court sentenced Defendant to time served and one year of supervised release, and imposed a manda tory $100 assessment and a $1,000 fine. Defendant objected to the fine, but the court overruled the objection. We review a sentencing court’s decision to impose a fine for “reasonableness3 under a deferential abuse-of-discretion standard.” United States v. Sharp , 749 F.3d 1267, 1291 (10th Cir. 2014). When a district court makes findi ngs regarding a defendant’s ability to pay a fine, we will reject those fi ndings only if they ar e clearly erroneous. See United States v. Perez-Jiminez , 654 F.3d 1136, 1145 (10th Cir. 2011). “A factual finding is clearly erroneous if it lacks evidentiary support or if a revi ew of the evidence leaves us with the definite and firm conviction that a mistake has been made.” United States v. Mirabal , 876 F.3d 1029, 1032 (1 0th Cir. 2017) (internal qu otation marks omitted). Defendant argues that “the district court clearly erred in finding that [Defendant] had the ability to pay a $1,000 fine.” Aplt. Br. at 5 (capitalization omitted). But that misstates the burden of pers uasion on the issue of ability to pay. Under USSG § 5E1.2(a), a sentencing court “shall impose a fine in all cases, except where the defendant establishes that he is unable to pa y and is not likely to b ecome able to pay any fine.” 1 As the defendant establishes language suggests, it is a defendant’s burden to show that he falls w ithin the exception. See Perez-Jiminez , 654 F.3d at 1145. In other words, the district court need not find that the defendant had the ab ility to pay; rather, it need find only that the defenda nt had not established his inability to pay. To be sure, the district court said, “I infer from these facts th at [Defendant] has the ability to pay a fine.” R., Vol. 3 at 50. But such imprecision is not uncommon in oral pronouncements. The court made clear that it understood what the proper inquiry was when it began its

1 Defendant argues that we cannot affirm on the alternative ground that Defendant failed to establish his future inability to pay because inability to pa y a fine in the future is a factual question and the district court made no finding on the matter. We need not address that issue, however, because we affirm on his present ability to pay.4 observations on the matter by stating, “[Defend ant] here has offered me nothing to show that he cannot pay a fine.” Id. Thus, our review is limited to determining whether the court clearly erred in finding that Defendant had not met hi s burden to show inability to
pay. We see no clear error. Defendant is correct that defendants can “ ‘ rely and stand upon . . . facts contained in the PSR’” to s how inability to pay. Aplt. Br. at 9 (quoting United States v. Labat , 915 F.2d 603, 604, 606 (10th Cir. 1990) (overturning fine of $110,823.95 imposed on defendant who was unemployed, whose family was receiving public assistance, and who re nted home from sister)). But, as other circuits have recognized, the absence of evidence—particularly a defendant’s failure to provide financial information to the probation office —can make it hard for a defendant to carry the burden of persuasi on on the issue of financial ability. In United States v. Tocco , 135 F.3d 116, 133 (2d Cir. 1998), the court held that it was reasonable for the district court to infer that the defendant “posse ssed considerably more assets than he admitted,” because of his “failure to file tax returns over the pa st 10 years and his refusa l to disclose financial information during pre-sentencing proceedings .” It said that it could not “allow a defendant’s lack of disclosure at the senten cing phase of the crimin al proceedings against him to work to his advantage on an appeal from that sentence.” Id; see United States v. Hairston , 46 F.3d 361, 376–77 (4th Cir. 1995) (“defendant cannot meet his burden of proof by simply frustrating the court’s ab ility to assess his financial condition”); United States v. Martinez , 151 F.3d 384, 396 (5th Cir. 1998) (although the government must produce evidence of ability to pay if the district court has adopted a PSR showing a5 limited ability to pay, the defendant failed to meet hi s burden of showing inability “because he did not provide complete financial information to the Probation Department”); United States v. Soyland , 3 F.3d 1312, 1315 (9th Cir. 1993) (defendant “failed to carry the burden of showing an inability to pay th e fine” when she “refused to provide financial informati on to the probation officer”). 2 Moreover, there was adequate evidence to indicate that Defendant could have accumulated enough assets before his arrest to now pay a modest $1,000 fine. As the district court observed, Defendant was drivi ng a car when he was arrested and, even accounting for his making some monthly payments to support a child, the difference between income and expenses suggested that Defendant had assets “t hat he has declined to disclose.” R., Vol. 3 at 50. We disagr ee with Defendant that “e vidence in the record establishe[d] inability to pay.” Aplt. Reply Br. at 2. We are not saying that the district court was compelled to impose a fine, only th at the record did not prohibit imposition of

2 Defendant did not invoke hi s privilege against self-incrimination in refusing to provide the financial information. But even if he ha d invoked the privilege, there is a substantial question (which we do not reso lve here) whether that would have changed our analysis. In United States v. Constantine , 263 F.3d 1122, 1128 (10t h Cir. 2001), we recognized that a defendant can invoke the Fifth Amendmen t at sentencing, but we saw “no merit . . . to [the defendant’s] contention that the cour t enhanced his sentence as retaliation for his refusal to answer questions on the earlier robbery.” “Rather,” we explained, “as a consequence of his silence he was unable to carry his own burden of proving he was entitled to the requested downward departure. Because the burden was his, the choice between invoking his right against self-inc rimination and proving the applicability of mitigating circumstances was also his.” Id. at 1128–29 (citations and footnote omitted); see Lee v. Crouse , 451 F.3d 598, 605 & n. 3 (10th Cir. 2006) (the circuit courts “have allowed sentencing courts to rely on, or draw inferences from, a defendant’s exercise of his Fifth Amendment rights for purposes other than determining the facts of the offense of conviction”).6 the fine. The district court did no t commit clear error. We AFFIRM the judgment of the district court.