United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3050

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United States of America, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the 

* Western District of Arkansas.

Jose Luis Martinez, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 15, 2010

 Filed: February 14, 2011

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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

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PER CURIAM.

Pursuant to a plea agreement, Jose Luis Martinez pled guilty to knowingly

possessing with intent to distribute a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 

The United States Probation Office prepared a presentence investigation report (PSR)

calculating a United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of

70 to 87 months imprisonment, two to three years supervised release, and a $12,500
to $1,000,000 fine. The district court reviewed the PSR, read the parties’ sentencing 1

memoranda, heard the testimony of five witnesses, listened to the arguments of

counsel and considered Martinez’s allocution. The district court granted the

government’s motion for a downward departure, pursuant to U.S.S.G. § 5K1.1, based

on Martinez’s substantial assistance to authorities, reducing Martinez’s advisory

Guidelines range to 57 to 71 months imprisonment, two to three years supervised

release, and a $10,000 to $1,000,000 fine. The court sentenced Martinez to 66 months

imprisonment and three yearssupervised release, and imposed a fine of $50,000, with

no interest accruing. The fine could be paid immediately or upon a schedule of $25

per quarter while Martinez is imprisoned, and upon release, $200 monthly, or ten

percent of his monthly household income, whichever is greater.

Martinez appeals the amount of his fine. Because Martinez did not object to the

fine at sentencing, we review for plain error. See United States v. Vaughn, 519 F.3d

802, 804 (8th Cir. 2008) (“If a defendant fails to object timely to a procedural

sentencing error, the error is forfeited and may only be reviewed for plain error.”). 

“Under plain error review, [Martinez] must show: (1) an error; (2) that is plain; and

(3) that affects substantial rights.” United States v. Alston, 626 F.3d 397, 405 (8th Cir.

2010) (internal quotation marks omitted). We will not correct a plain error “unless it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 

United States v. Williams, 624 F.3d 889, 897 (8th Cir. 2010). It is Martinez’s burden

to show “there is a reasonable probability he would have received a lighter sentence

but for the error.” United States v. Brewer, 624 F.3d 900, 909 n.6 (8th Cir. 2010)

(quoting United States v. Bain, 586 F.3d 634, 640 (8th Cir. 2009)). 

Martinez cannot carry his burden. He contends (1) the fine is unreasonable

because the district court failed to consider Martinez’s ability to pay the fine and the

The Honorable JimmLarry Hendren, Chief Judge,UnitedStatesDistrictCourt

1

for the Western District of Arkansas.

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financial impact the fine places on Martinez and his dependants, and (2) there is “no

evidence that the district court considered the pertinent factors prior to imposing the

fine.” Martinez calculates that, if he paid the minimum monthly amount permitted

under the district court’s order, he would have paid less than half the fine by the time

his supervised release isterminated. He also speculates, based on his wife’s testimony

that she is having trouble making ends meet now, his payment of any amount larger

than the $10,000 minimum would cause his family to suffer severe hardship. Except

for the amount of the fine itself, Martinez pointsto no evidence the district court failed

to consider either his ability to pay or the fine’s impact on his family. The district

court considered that Martinez has talent, having been a disc jockey and a sales

representative, and also involved in his own legitimate business. The court found

Martinez has “ways in which to make money without dealing drugs.” Furthermore,

the PSR indicates Martinez possesses significant assets, such as home equity and a

rental property, which might be liquidated over time to pay all or a portion of the fine. 

There is no basis to conclude the district court failed to consider Martinez’s ability to

pay or the fine’s impact on his family. 

Martinez also argues the district court plainly erred because the sentencing

transcript does not indicate the district court considered the U.S.S.G. § 5E1.2(d)

factors in determining the amount of the fine. According to Martinez, “the only

consideration that the judge used regarding the fine was” the court’s observation that

Martinez’s drug distribution was “a business and it was about money.” This argument

has no merit. As we observed in Alston, 626 F.3d at 405, the district court “referenced

[Martinez’s] ability to work while in prison, and the court established an installment

schedule for payment of the fine.” The court also discussed Martinez’s employment

history, and the PSR shows Martinez owns significant assets. See United States v.

Herron, 539 F.3d 881, 888-89 (8th Cir. 2008) (finding no plain error where

information in the PSR, sentencing memoranda and counsels’ arguments “provide[d]

sufficient information to establish that the factors were considered and that [the

defendant] failed to establish that he could not pay or was not likely to be able to pay

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a fine”). The district court did not plainly err in determining the amount of Martinez’s

fine.

Accordingly, we affirm.

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