United States Court of Appeals

for the Fifth Circuit

No. 19-11039

United States of America, 

Plaintiff—Appellee,

versus

Jon Anthony Terry, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CR-647-1

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

Jon Terry pleaded guilty to two counts of production of child 

pornography in violation of 18 U.S.C. § 2251(a). The district court 

sentenced Terry to 720 months of imprisonment. The district court also 

imposed a $5,000 assessment per count—or $10,000 total—pursuant to 18 

U.S.C. § 3014, which provides that “the court shall assess an amount of 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2022

Lyle W. Cayce

Clerk

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No. 19-11039

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$5,000 on any non-indigent person” convicted of certain crimes relating to 

sexual abuse. 

On appeal, Terry argues that the district court erred in imposing the 

$10,000 assessment because he is indigent.

1

 Because he did not object to the 

assessment at sentencing, our review is for plain error. Puckett v. United 

States, 556 U.S. 129, 135 (2009). Terry must therefore show an error which 

is “clear or obvious” and affected his “substantial rights.” Id. Such an error 

must be “so clear or obvious that ‘the trial judge and prosecutor were derelict 

in countenancing it, even absent the defendant’s timely assistance in 

detecting it.’” United States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en 

banc) (quoting United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008)). If 

Terry clears those hurdles, we have discretion to correct the errors if we find 

they impugn “the fairness, integrity, or public reputation of judicial 

proceedings.” Puckett, 556 U.S. at 135 (quoting United States v. Olano, 507 

U.S. 725, 736 (1993)). 

Terry has not demonstrated a clear or obvious error here. Ample 

record evidence supports a finding that Terry was not so indigent that he 

could not pay the assessment. Terry filled out a financial affidavit stating that 

he was employed for $2,900 a month at Robert Half Technologies and that 

he earned $3,000 a year from online gaming. The PSR catalogs numerous 

information technology jobs that Terry held, where he earned between $600 

and $900 a week. Moreover, he retained counsel for proceedings before the 

district court. To be sure, there is also evidence in the record that could have 

supported a finding of indigency. But given the evidence discussed above,

1 In their briefing, the parties dispute whether Terry waived his right to appeal the 

$10,000 assessment in his plea agreement. The Government has since abandoned this 

argument. Accordingly, we do not consider this argument and instead proceed directly to 

the merits. 

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the district court’s conclusion was “plausible in light of the record viewed in 

its entirety.” Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985); 

see also United States v. Childers, 740 F. App’x 417 (5th Cir. 2018) (per 

curiam) (affirming a district court’s imposition of a § 3014 assessment 

because “[a]lthough some of the PSR’s information based on [Appellant’s] 

self-reported status suggested he was indigent, other financial data in the 

record signaled to the contrary”). 

Terry further contends that the district court made an obvious error 

as it found that Terry was indigent for the purposes of paying a separate, 

larger fine pursuant to § 5E1.2 of the United States Sentencing Guidelines. 

But we have rejected that exact argument. See United States v. Graves, 908 

F.3d 137, 143–44 (5th Cir. 2018). Under the guideline provisions, Terry’s 

fine range for his offense was $50,000 to $500,000. As we held in Graves,

“[i]t should go without saying that defendant may not have the same ability 

to pay $5,000 as he would have to pay five to fifty times that amount.” Id. 

Finally, relying on out-of-circuit precedent, Terry argues that the 

district court plainly erred in failing to make an explicit finding that he could 

pay the assessment before imposing it. But we have never required such an 

explicit finding. Indeed, in an unpublished opinion, we held that “the statute 

does not require such a finding” and affirmed a district court’s implicit 

finding that a defendant was not indigent. See United States v. Streaty, 735 F. 

App’x 140, 141 (5th Cir. 2018) (per curiam). At a minimum, the law remains 

unsettled in this circuit. Terry therefore cannot demonstrate that the district 

court committed plain error by failing to make an explicit finding that he 

could pay the § 3014 assessment. See United States v. Evans, 587 F.3d 667, 

671 (5th Cir. 2009) (explaining that we ordinarily do not find plain error when 

we have not addressed an issue or where an argument requires extending 

existing precedent). 

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In sum, the record as a whole supports a finding that Terry was not 

indigent for the purposes of the § 3014 assessment at issue. His arguments 

to the contrary are unavailing. He has not shown plain error here. 

AFFIRMED.

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