PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RACHEL BASURTO, Defendant - Appellant. No. 15-2119

________________ _________________ ORDER

________________ _________________ Before MATHESON , SEYMOUR , and BACHARACH , Circuit Judges.

________________ _________________ This matter is before the court on appellant’s Petition for Rehearing En Banc and Panel Rehearing. Upon consideration by the original panel members, the request for panel rehearing is granted to the extent of the amendments made to the attached revised decision. The petition and the revised opin ion were also circulated to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested a poll, the request for en banc reconsideration is denied. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 The clerk of court is directed to file the amended Opinion forthwith.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA,
Pl aintiff - Appellee,

v. RACHEL BASURTO,
De fendant - Appellant. No. 15-2119

__________________ _______________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CR-00969-JB-1)

__________________ _______________ John V. Butcher, Assistant Federal Pu blic Defender, Offi ce of the Federal Public Defender, Albuqu erque, New Mexico, fo r Defendant-Appellant. James R.W. Braun, Assist ant United States Attorn ey, (Damon P. Martinez, United States Attorney, with him on th e brief) Office of the United States Attorney, Albuquerque, New Mexi co, for Plaintiff-Appellee.

__________________ _______________ Before MATHESON , SEYMOUR , and BACHARACH , Circuit Judges.

__________________ _______________ BACHARACH , Circuit Judge.

__________________ _______________ Ms. Rachel Basurto was convicted on federal drug ch arges. In light of the conviction, the district court ha d to decide whether to impose a fine and set the amount. Ms. Basurto’s on ly sources of income were her FILED United States Court of Appeals Tenth Circuit 

### August 19, 2016
Elisabeth A. Shumaker Clerk of Court2 monthly disability payments, but she and her husband owned a house unencumbered by a mortga ge. Relying on Ms. Basu rto’s co-ownership of the house, the district court imposed a fine of $13,133.33, reasoning that Ms. Basurto could pay this amount by se lling the house or obtaining a loan with the house as collateral. 1 Ms. Basurto appeals th e fine, arguing that it is procedurally unr easonable. We affirm.
I. Ms. Basurto asserts five challenges to the fine. On appeal, Ms. Basurto brings five challenges to the fine 2 : 1. The district court failed to consider arguments that Ms. Basurto could not sell the house.
2. The district court erred in finding that Ms. Basurto could obtain a loan with th e house as collateral. 3. In assessing Ms. Basu rto’s ability to pay a fine, the district court should have considered the hardship to Ms. Basurto.

1 To calculate the fine , the district court

 valued the house at its ta x-assessment va lue, $33,689,

 subtracted a 6% realtor fee,

 halved this figure to account fo r the husband’s interest in the house, and

 subtracted Ms. Basurto’s exis ting liabilities ($2,500) and courtimposed special as sessments ($200). Based on these calculations, the distri ct court imposed a $13,133.33 fine.

2 On appeal, Ms. Basurto refers to the Eighth Amen dment’s Excessive Fines Clause. See Appellant’s Opening Br. at 43-45, 48, 50. We do not interpret these references as a separate ap peal point.3 4. The district court clearly erred by relying on facts that (a) the family members living with Ms. Basurto had known about and could have prevented her crimes and (b) the house had been used to facilitate the crimes.
5. The district court did not accoun t for the increased risk of recidivism posed by the fine. We reject each challenge. II. We consider whether the distri ct court abused its discretion. We review the reasonableness of the district court’s decision to impose a fine under the ab use-of-discretion standard. United States v. Lopez-Macias , 661 F.3d 485, 488-89 (10th Cir. 2011). “Reasonableness has both procedural and substantive components.” United States v. Cage , 451 F.3d 585, 591 (1 0th Cir. 2006). Ms. Basurto characterizes her challe nges to the fine as procedural. This characterization is correct beca use Ms. Basurto challenges the method that the district court used in calculating the fine. See id. In assessing her proce dural challenge, we ca n disturb the district court’s factual finding s only if they are clearly erroneous. United States v. Trujillo , 136 F.3d 1388, 1398 ( 10th Cir. 1998). But the district court’s legal conclusions are subj ect to de novo review. United States v. Ray , 704 F.3d 1307, 1315 (10th Cir. 2013).4 III. The district court did not fail to consider argu ments regarding Ms. Basurto’s inability to sell the house. The U.S. Sentencing Gu idelines authorize distri ct courts to impose fines except when defendants establis h that they are unable to pay and unlikely to ob tain that ability. U.S. S.G. § 5E1.2(a) (2014). 3 Applying this authority, the district court found that Ms. Basu rto could pay a fine by selling her house. According to Ms. Basurto, the di strict court failed to consider impediments preventing her from se lling the house. Fo r example, she argued in district court that state law prevented her from selling the house without her husband’s co nsent, that she did not know where her husband

was, 4 and that he probably would not consent to a sale. See N.M. Stat. Ann. § 40-3-13(A) (voiding the sale of real property that spouses own as community property without both spouses’ consent). After defense counsel presented these argument s, the district court found that Ms. Basurto probably would need to se ll the house even in the absence of a fine. R. at
347.

3 Section 5E1.2(a) states that the district cour t “shall” impose a fine unless the defendant establ ishes an inability to pay, but the U.S. Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005) rendered the Guidelines advisory.

4 Ms. Basurto believed that Mr. Ba surto was residing in Mexico, but she had not had any contact with him since 2003, when he went to Mexico.5 It is true that the district co urt’s written opinion did not make specific findings on Ms . Basurto’s arguments. Bu t there was no need for such findings. See United States v. Trujillo , 136 F.3d 1388, 1398 (10th Cir. 1998) (addressing ability to pay and concluding that express findings as to each statutory f actor are not required prior to the imposition of a fine); United States v. Washington-Williams , 945 F.2d 325, 327-28 (10th Cir. 1991) (holding that expre ss findings are unnecessary on ability to pay a fine under U.S. S.G. § 5E1.2); United States v. Wright , 930 F.2d 808, 810 (10th Cir. 1991) (“Specifi c fact-finding on the r ecord has b een deemed unnecessary for imposition of fines under [a prior version of 18 U.S.C. § 3572, which set out the fa ctors governing imposition of a fine].”). “It is sufficient that the record reflects the basis for th e imposition of a fine.” United States v. Trujillo , 136 F.3d 1388, 1398 (10th Cir. 1998). The district court entertained Ms. Basurto’s sentencing arguments, holding two sentencing hearings, or dering and reviewing supplemental briefing, providing a general statemen t of reasons for imposing the fine, and stating that the relevant sentenci ng factors had been considered. We have no reason to believ e that the district cour t ignored Ms. Basurto’s arguments against a fine.6 IV. The district court did not clearl y err in finding that Ms. Basurto could obtain a loan with the house as collateral. Ms. Basurto also challenges the finding regarding her ability to obtain a loan with the house as collate ral. But this find ing was not clearly

erroneous. Ms. Basurto argues that she could not obtain a loan because she is indigent. But this argume nt overlooks the fact that she co-owns a house unencumbered by a mort gage. Ms. Basurto’s co-o wnership of the house provided her with collat eral to offer a lender. According to Ms. Basurto, she co uld not use the hou se as collateral because state law prohibits sale of the house withou t her husband’s consent. Thus, Ms. Basurto argues, “[ t]he chances of not being able to liquidate the home would be too great.” 5 Appellant’s Opening Br. at 33. In our view, however, the district court co uld reasonably rej ect this argument. State law provides a statutory procedure allowing married individuals to sell marital property when their spouses disappear. See N.M. Stat. Ann. § 40-3-16. If Ms. Basurt o did not know where her husband was, she could sell the house without hi s consent upon co mpletion of five tasks:
1. File a petition stating why the tr ansaction would be desirable.

5 State law would also prohibit Ms. Basurto from mortgaging the house without spousal consent, but Ms. Basurto does no t argue this point. See N.M. Stat. Ann. § 40-3-13(A).7 2. Obtain court appointm ent of a guardian ad litem for the absent husband and pay this guardian a “reasonable fee.”
3. Serve a notice of hearing on the guardian ad litem.
4. Publish four successive weekly notices of hearing in a newspaper of general circulation in the county where the petition was pending. 5. Obtain a court order authorizing the transaction based on a finding that the husb and had disappeared.
N.M. Stat. Ann. § 40-3-16. The district court could reasonably consider Ms. Basurto capable of performing these five tasks. Even if Ms. Basurto could not afford an attorney, the statutory procedure is relatively straightforward and Ms. Basurto did not present any evidence of an inability to carry out the statutory procedure. Ms. Basurto argues elsewhere that she could not comply with the statutory procedure because she (1) wo uld not be able to prove that her husband’s location was “ unknown to anyone” and (2) could not afford the non-attorney costs associ ated with the procedur e, such as publishing notices in a local ne wspaper. Appellant’s Opening Br. at 28. 6 The district court could reasonably re ject these arguments. The statutory procedure required only that a spouse’s locat ion was “unknown to the other spouse [Ms. Basurto]”; the stat ute did not require Ms. Basurto to prove that her

6 Ms. Basurto presented th ese arguments when stat ing that the district court had disregarde d her contentions about an inability to se ll the house.8 husband’s location was unknown to anyon e. N.M. Stat. Ann. § 40-3-16(A). And Ms. Basurto presented no evidence of an inability to pay the costs associated with the st atutory procedure. Ms. Basurto would not need to us e the statutory procedure if the husband consented to a sale. Accordin g to Ms. Basurto, spousal consent was impossible because she did not know where the husban d was. But the record does not show th at Ms. Basurto ever a ttempted to contact her husband, much less that she was unable to locate him or ob tain his consent. In fact, Ms. Basurto’s appeal brie fs suggest the oppo site: Ms. Basurto states that one of her daughters has be en in contact with the husband, that Mr. Basurto has a son who “could possibly provide [the husband’s] location,” and that Ms. Basurto “will probably not be able to prove [the husband] has disappea red and his location is unknown to anyone.” Appellant’s Opening Br. at 7, 28-29. In these circumstances, the district court could reas onably conclude that a lender would be w illing to loan money to Ms. Basu rto with the house as collateral. Ms. Basurto disagrees , contending that she would be considered a poor credit ri sk. But Ms. Basurto did not present any evidence of a difficulty in obtaining a loan. In the absence of such evidence, the district court could reasonably infer that Ms. Basurto would be able to obtain a loan since she could provide her house as collateral. As a result,9 the court did not clearly er r in finding that Ms. Basurto could obtain a loan with her unencumbered co-ownership of the house. V. The district court did not err when analyzing the hardship that the fine imposed on Ms. Basurto. The district court reasoned that th e hardship to Ms. Basurto and her ability to pay are separate inquiries: Once the Court decided that–despite [Ms. Basurto’s] minimal assets, the third partie s living in [Ms. Basurto’s] home, and the other factors–it should fine her, the burden shifted to [Ms.] Basurto to prove she could not afford to pay that fine. . . . While the difficulty a fine will ca use is certainly relevant when she is arguing that th e Court should not impo se a fine, it is not relevant once the Court decides to impose a fine. At that stage, difficulty to the defe ndant is not the issue; the sole issue is whether [Ms. Basurto] can pay the fine. R., vol. I at 254. Ms. Basurto challeng es this reasoning, arguing that the district court should have treated hard ship as part of the ability-to-pay analysis. Appellant’s Opening Br. at 34-37. 7 We conclude that the district court did not err.

7 In her reply brief, Ms. Basurto offe rs a different inte rpretation of the district court’s language, arguing th at the district court incorrectly reasoned that hard ship is immaterial regardin g the amount of the fine. But Ms. Basurto did not raise this interpreta tion of the distri ct court’s language until her reply brief. As a result, we decline to consider this argument. See United States v. Hunter , 739 F.3d 492, 495 (10th Cir. 2013) (d eclining to consider an argument omitted in the appellant’s opening brief).10 In deciding whether to impose a fine and set the amount, the district court must consider the sentenci ng factors in 18 U.S.C. § 3572(a). 8 Section 3572(a) requires the district court to consider fact ors including the defendant’s income, earni ng capacity, financial re sources, and the burden of the fine on the defend ant. 18 U.S.C. § 3572(a)(1 )-(2) (2012). Similarly, the guidelines require the district court to consid er the defendant’s ability to pay and the burd en on the defendan t. U.S.S.G. § 5E1.2(a), (d)(2)-(3) (2014). The district court complied with the statute and guidelines by considering hardship in determining whether to impose a fine. As noted above, the court expressly stated that it had decided to impose a fine only after considering “the difficulty a fi ne will cause.” R., vol. I at 254. The court simply noted that ab ility to pay and hardship are distinct inquiries, and they are. Ms. Basurto elsewhere re cognizes this distinction, stating that “[t]he [sentencing] factors that must be cons idered also include those specific to fines: the de fendant’s ability to pay, which is determined by the defendant’s income, earni ng capacity, and financia l resources, 18 U.S.C. § 3572(a)(1), U.S.S.G. § 5E1.2(d)(2); [and] the hardship the fine will impose upon the de fendant, her fami ly and her financial resources,

8 The district court was also require d to consider the sentencing factors in 18 U.S.C. § 3553(a). Th e district court’s consider ation of the factors in § 3553(a) is not at i ssue in this appeal.11 § 3572(a)(2), § 5E1.2(d)(3) & (8) . . . .” Appellant’ s Opening Br. at 44. As Ms. Basurto implicitly admits in this passage, hardship an d ability to pay are distinct considerations. In her briefs and petition for re hearing, Ms. Basurto suggested a parade of horribles if the court igno res hardship in d eciding whether to impose a fine. But the dist rict court did not ignore the hardship; the court simply observed the differe nces between the factors involving ability to pay and hardship. Thus, we reject Ms. Basurto’s challenge to the district court’s decision to impose a fine. VI. The district court did not rely on clearly erron eous facts in finding that (1) Ms. Basurto’s family had known about her drug activity and (2) Ms. Basurto’s house was connected to her drug activity. A district court errs procedurally when it imposes a fine based on clearly erroneous facts. United States v. Lente , 647 F.3d 1021, 1030 (10th Cir. 2011). Ms. Basurto ar gues that the district court clearly erred by relying on two facts: (1) the family members living with Ms. Basurto had known about the illegal drug activity and could have stopped it, and (2) Ms. Basurto’s hou se had been connected to her illegal beha vior. In our view, these factual findings we re not clearly erroneous.12 The record includ es three facts supporting the district court’s finding that several of Ms. Basurto’s fami ly members had been aware of Ms. Basurto’s drug activity. 9 First, Ms. Basurto’s a dult daughter knew the comb ination to a safe in the house that contained methamphetamine, cash, a handgun, and a key to another safe containing more cash. R., vol. I at 277-78. In fact, the daughter

 opened the safe for the police because Ms. Basurto had claimed that she did not know the combination and

 claimed that some of the cash from the safe was hers. Second, methamphetamine was f ound in the son- in-law’s car. Third, Ms. Basurto kept items cons istent with drug dealing—a scale, small plastic baggies, and a razor bl ade—in plain view in her bedroom. Based on these three fact s, the district court could reasonably find that several of Ms. Ba surto’s family members had known about the drug activity and chose to continue residing with Ms. Basurto anyway. In addition, the district court c ould reasonably find that Ms. Basurto had used her house to “further [her] drug dealing enterprise[].” Supp. R. at 71. As noted, Ms. Basurto kept cash, drugs, and a ha ndgun in her house.

9 Ms. Basurto’s one-year-old gr anddaughter also lived with Ms. Basurto. Ms. Basurto argu es that “of course . . . [the] granddaughter was completely innocent.” Appellan t’s Opening Br. at 47-48. The granddaughter’s presence in the house does not affect our analysis.13 Even if Ms. Basurto had c onducted drug transactions elsewhere, the district court could reasonably infer that Ms. Ba surto’s house had played a role in the illegal activity. Accordingly, we conclude that the district court did not clearly err in finding that (1) Ms. Ba surto’s live-in family members had known of the drug crimes and (2) Ms. Basurto’s house had been conn ected to the drug crimes. VII. The district court did not ab use its discretion by failing to address the risk of recidivi sm caused by the fine. Ms. Basurto also argues that the district court failed to consider the risk that the fine woul d result in recidivism. As discussed above, however, specific findings were unnecessary. See Part III, above. 10 Thus, the district court did not err by omitting findings on the risk of recidivism from a fine. VIII. Disposition We affirm.

10 In considering the sentencing factors, the district court expressly considered the recidivism risk posed by the fine and accounted for the possibility that a large fi ne might “nudge [Ms. Basu rto] into further profitbearing criminal activity that she migh t not otherwise comm it.” Supp. R. at 23.