IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30730

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

STEPHEN BRUM,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:09-CR-232-2

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Stephen Brum appeals the district court’s imposition of a fine of $5,000,

following his guilty plea to assault by striking, beating, and wounding in

violation of 18 U.S.C. §§ 113(a)(4) and 2. According to Brum, he presented

evidence in his motion to modify the judgment that he could not pay the fine

imposed by the district court. As such, he contends that under the holding of

United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992), the burden then

shifted to the Government to show that he could in fact pay the fine. He asserts

United States Court of Appeals

Fifth Circuit

F I L E D

July 20, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-30730 Document: 00511545187 Page: 1 Date Filed: 07/20/2011
No. 10-30730

that because the Government failed to do so, the district court plainly erred by

imposing the fine without making specific findings regarding his ability to pay.

Because Brum failed to object to the imposition of the fine at sentencing,

review is for plain error. See United States v. McElwee, __ F.3d __, 2011 WL

2686447, at *5 (5th Cir. July 12, 2011)(general objection to sentence does not

preserve objection to the amount of the fine); United States v. Brantley, 537 F.3d

347, 351 (5th Cir. 2008). To show plain error, Brum must show a forfeited error

that is clear or obvious and that affects his substantial rights. Puckett v. United

States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). Brum has not made such a

showing. 

Brum’s reliance on Fair is misplaced since no presentence report was

prepared in his case. See United States v. Hodges, 110 F.3d 250, 252 (5th Cir.

1997); United States v. Martinez, 151 F.3d 384, 396 (5th Cir. 1998). At

sentencing, Brum failed to present evidence of his inability to pay a fine, which

the district court ordered could be paid in monthly installments once Brum was

released onto supervised release. In its order denying Brum’s motion to modify

the judgment, the district court stated that it would reconsider modification of

its payment terms based upon Brum’s “actual [financial] circumstances.” The

district court adequately addressed Brum’s post-judgment arguments regarding

his alleged inability to pay. See McElwee, 2011 WL 268447, at *5 (court showed

that it considered defendant’s ability to pay). Under these circumstances, there

was no error. See Martinez, 151 F.3d at 396; United States v. Matovsky, 935 F.2d

719, 723 (5th Cir. 1991); United States v. Altamirano, 11 F.3d 52, 53-54 (5th Cir.

1993); United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994). 

Accordingly, the judgment of the district court is AFFIRMED. 

2

Case: 10-30730 Document: 00511545187 Page: 2 Date Filed: 07/20/2011