### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 im p o s i t i o n of a fine of $5,000, following his guilty pl e a t o assault by striking, beating, and wounding in

vi o l a tion of 18 U.S.C. §§ 113(a)(4) and 2. According to Brum, he presente d evidence in his motion to modify the judgment th a t h e could not pay the fine imposed by the distri ct court. As such, he contends that under the holding of United States v. Fair , 979 F.2d 1037, 1041 (5th Cir. 19 9 2 ) , th e b u rden then shifted to the Government to show that he could in fact pay the fine. He asserts U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 20, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-30730 Document: 00511545187 Page: 1 Date Filed: 07/20/2011No. 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. M cE l wee , __ F.3d __, 2011 WL 2686447, at *5 (5th Cir. July 12, 2011)(general objection to sente n c e d o e s 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 h a s n o t made such a showing. Brum’s reliance on Fair is misplaced since n o p r e s e ntence report was prepared in his case. See United States v. Hodges , 110 F.3d 2 5 0 , 2 5 2 (5th Cir. 1997); United States v. Martinez , 151 F

. 3 d 3 8 4 , 3 96 (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] c i r cumstances.” The district court adequ at ely 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 . Ro d riguez , 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