IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30602

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL NAVA-PALACIOS, also known as Salvador Ruben Escamilla, also

known as Salvador R. Escamilla, also known as Rafael 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 Nava-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

number and illegal reentry into the United States following previous

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 19, 2012

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.

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No. 11-30602

given the economic conditions in Mexico. He also asserts that the fine is

unreasonable because it constitutes an unwarranted disparity among similarly

situated defendants convicted of illegal reentry.

The Guidelines state 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 fine, 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 Cir. 1999) (citing

Fair, 979 F.2d at 1041).

In the instant case, the district 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 regarding Nava’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 financial status, it does not appear he has the

ability to pay a fine.” The district court’s imposition of a fine payable in the

future, therefore, did not contravene the PSR’s recommendation. Cf. United

States v. Brantley, 537 F.3d 347, 352 (5th Cir. 2008). Moreover, Nava’s

unreasonableness argument focuses on his inability 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 [Nava’s] deportation.” Although the

judgment does 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 abuse of

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discretion on the part of the district court in imposing the fine. See 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). 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 FED. R. CRIM. 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 was convicted of

illegal reentry and illegal use of a social security card. Nava has not established

the existence of any sentencing disparity because he does not cite to any

evidence that fines have not been imposed in cases with similar facts. See

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 respect to 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 FED. R. CRIM. P.

36.

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