### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 20260 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
SERGIO BAHENA , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18

- CR

- 574

- 1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges. PER CURIAM: * Sergio Bahena pleaded guilty to conspiring to make, utter, and possess

a counterfeit security in violation of 18 U.S.C. § § 371 and 513(a). The district
court sentenced Bahena to 1 5 months of imprisonment and three years of supervised release. The district court also ordered Bahena to pay restitution in the amount of $ 62,444.9 3

. Bahena was ordered to make monthly restitution payments of $ 100 beginning in May 2016.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 30, 2019

Lyle W. Cayce Clerk Case: 19-20260 Document: 00515180920 Page: 1 Date Filed: 10/30/2019No. 19

- 20260

2 In April 2019 , the district court revoked Bahena ’s supervised release and
sentenced him to 12 months of imprisonment and an additional 12 months of supervised relea se. Bahena argues that the district court abused its discretion by revoking his supervised release based on his failure to comply with his restitution obligations. We review a decision to revoke supervised release for an abuse of
discretion. United States v. Spraglin , 418 F.3d 479, 480 (5th Cir. 2005). Applying this standard, we will not substitute our judgment for that of the
district court. United States v. Fortenberry , 919 F.2d 923, 925 (5th Cir. 1990). The Supreme Court has articulated constitutional parameters for court

ordered confinement resulting from a failure to pay fines and restitution

— parameters meant to avoid imprisoning defendants “solely by reason of their indigency.” Williams v. Illinois , 399 U.S. 235, 242 (1970); see Beard en v. Georgia , 461 U.S. 660, 661

- 62 (1983); Tate v. Short , 401 U.S. 395, 398 (1971). The Supreme Court has “distinguished this substantive limitation on the imprisonment of indigents from the situation where a defendant was at fault in failing to pay the fine.” Bearden , 461 U.S. at 668. “If the defendant is found to have willfully refused to pay

. . . restitution when he had the means to do so, or to have failed to make sufficient bona fide efforts to obtain employment or borrow money with which to pay

. . . restitution, the government is justified in using imprisonment as a sanction to enforce collection .” United States v. Payan , 992 F.2d 1387, 1396 (5th Cir. 1993). There is no dispute that Bahena violated the conditions of his supervised release by fa iling to pay $ 100 per month in restitution as ordered

. While
Bahena made some payments toward restitution and maintained that t he missed payments were caused by a lack of funds, the record shows that he was
able to obtain a significantly larger amount of cash in order to make bond in a Case: 19-20260 Document: 00515180920 Page: 2 Date Filed: 10/30/2019No. 19

- 20260

3 state criminal proceeding. T he district court was aware of the requirement that the failure to pay be willful, and its implicit conclusion that Bahena willfully refused to satisfy his restitution obligations is not clearly erroneous in light of the record as a whole. Thus, the decision to revoke Bahena’s supervision was not an abuse of discretion. See id

. The district court’s judgment is AFFIRMED. Case: 19-20260 Document: 00515180920 Page: 3 Date Filed: 10/30/2019