### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30602 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RAFAEL NAVA-PALACIOS , al s o known as Salvador Ruben Escamilla, also known as Salvador R. Escamilla, also known a s R afael Arreto-Palacios, also known as Rafael Matos-Palacios, also known as Rafael P. Nava, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:11-CR-18-1

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges. PER CURIAM: * Rafael N ava-Palacios (Nava) appeals the district court’s imposition of a fine of $5,000 after his entry of a guilty plea to illegal use of a social security

n u mb e r and illegal reentry into the United States following previou s deportation. Nava contends that the fine is unreasonable because, as the presentence report (PSR) determined, he does not have the ability to pay the fine 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 April 19 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop 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 TH C IR

. R. 47.5 .4. Case: 11-30602 Document: 00511827936 Page: 1 Date Filed: 04/19/2012No. 11-30602

given the economic conditions in Mexico. He also a s s e rt s that the fine is unreasonable because it constitutes an unwarranted disparity among similarly situated defendants convicted of illegal reentry. The Guideline s s t at e that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a); see United States v. Fair , 979 F.2d 1037, 1040 (5th Cir. 1992). The defendant bears the burden of proof of inability to pay a fi n e, and he may use the PSR as proof of inability to pay.” United States v. Magnuson , 307 F.3d 333, 335 (5th Cir. 2002). If the district court adopts the PSR but “chooses to disregard the [PSR’s] recommendation [on fines], it must make specific findings regarding the defendant’s ability to pay a fine.” United States v. Landerman , 167 F.3d 895, 899 (5th C ir . 1 9 9 9) (citing Fair , 979 F.2d at 1041). In the instant case, the distric t court did not reject or depart from the adopted PSR’s recommendation on a fine, and as a result, the court was not required to make specific findings regardi n g N av a ’s ability to pay the fine. Unlike the PSR in Fair , which explicitly stated that the defendant lacked either the present or the future capacity to pay a fine, the PSR here determined only that based on Nava’s “present f i n a n c i al status, it does not appear he has the ability to pay a fine.” The district court’s imposition of a fine p ay ab l e i n the future, therefore, did not contravene the PSR’s recommendation. Cf. United States v. Brantley , 537 F.3d 347, 352 (5th Cir. 20 0 8)

. Moreover, Nava’s unreasonableness argument focuses on hi s i n ability to pay the fine once he is deported to Mexico. At sentencing, however, the district court explicitly stated that payment of the fine was “subject to [ N av a ’ s] deportation.” Although the judgment d oes not expressly state the condition that payment of the fine is subject to Nava’s deportation, the district court’s oral pronouncement of the condition at sentencing controls. See United States. v. Torres-Aguilar , 352 F.3d 934, 935 (5th Cir. 2003). Under these circumstances, there was no ab u s e of
2 Case: 11-30602 Document: 00511827936 Page: 2 Date Filed: 04/19/2012No. 11-30602

di scretion on the part of the district court in imposing the fine. Se e U n i t e d States v . M

a t o v sky , 935 F.2d 719, 723 (5th Cir. 1991); United States v. Altamirano , 11 F.3d 52, 53-54 (5th Cir. 1993). However, the judgment’s failure to expressly state the condition that Nava’s payment of the fine is subject to his deportation, constitutes a clerical error that is correctable on remand pursuant to F E D . R. C R I M . P. 36. Additionally, Nava’s argument regarding the need to avoid unwarranted sentencing disparities among defendants convicted of illegal reentry, which he raises for the first time on appeal, is unavailing since Nava w a s convicted of illegal reentry and illegal use of a social security card. Nava has not established the existence of any sentencing di s p arity because he does not cite to any

evi d e n ce that fines have not been imposed in cases with similar facts. Se e United States v. Sanchez-Ramirez , 497 F.3d 531, 535 n.4 (5th Cir. 2007); United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006). Thus, he has failed to show any error, plain or otherwise, with res p e c t t o the imposition of the fine by the district court. See Puckett v. United States , 556 U.S. 129, 135 (2009). Accordingly, Nava’s convictions and sentences are AFFIRMED. The case is REMANDED for correction of the clerical error pursuant to F E D

. R. C R I M

. P. 36.

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