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 opinion 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 

August 19, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

The clerk of court is directed to file the amended Opinion forthwith. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk 
PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

RACHEL BASURTO, 

 Defendant - 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 Public Defender, Office of the Federal 

Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. 

James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, 

United States Attorney, with him on the brief) Office of the United States 

Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee. 

_________________________________ 

Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

Ms. Rachel Basurto was convicted on federal drug charges. In light 

of the conviction, the district court had to decide whether to impose a fine 

and set the amount. Ms. Basurto’s only sources of income were her 

FILED 

United States Court of Appeals

Tenth Circuit 

August 19, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

monthly disability payments, but she and her husband owned a house 

unencumbered by a mortgage. Relying on Ms. Basurto’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 selling the house or obtaining a loan 

with the house as collateral. 1

 Ms. Basurto appeals the fine, arguing that it 

is procedurally unreasonable. We affirm. 

I. Ms. Basurto asserts five challenges to the fine. 

On appeal, Ms. Basurto brings five challenges to the fine2

: 

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 the house as collateral. 

3. In assessing Ms. Basurto’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 tax-assessment value, $33,689, 

 subtracted a 6% realtor fee, 

 halved this figure to account for the husband’s interest in the 

house, and 

 subtracted Ms. Basurto’s existing liabilities ($2,500) and courtimposed special assessments ($200). 

Based on these calculations, the district court imposed a $13,133.33 fine. 

2

 On appeal, Ms. Basurto refers to the Eighth Amendment’s Excessive 

Fines Clause. See Appellant’s Opening Br. at 43-45, 48, 50. We do not 

interpret these references as a separate appeal 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 account for the increased risk of 

recidivism posed by the fine. 

We reject each challenge. 

II. We consider whether the district court abused its discretion. 

 We review the reasonableness of the district court’s decision to 

impose a fine under the abuse-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 (10th Cir. 2006). 

 Ms. Basurto characterizes her challenges to the fine as procedural. 

This characterization is correct because Ms. Basurto challenges the method 

that the district court used in calculating the fine. See id. 

In assessing her procedural challenge, we can disturb the district 

court’s factual findings 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 subject 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 arguments regarding 

Ms. Basurto’s inability to sell the house. 

 The U.S. Sentencing Guidelines authorize district courts to impose 

fines except when defendants establish that they are unable to pay and 

unlikely to obtain that ability. U.S.S.G. § 5E1.2(a) (2014).3

 Applying this 

authority, the district court found that Ms. Basurto could pay a fine by 

selling her house. 

 According to Ms. Basurto, the district court failed to consider 

impediments preventing her from selling the house. For example, she 

argued in district court that state law prevented her from selling the house 

without her husband’s consent, 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 arguments, the district court found that Ms. Basurto 

probably would need to sell the house even in the absence of a fine. R. at 

347. 

 

3

 Section 5E1.2(a) states that the district court “shall” impose a fine 

unless the defendant establishes 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. Basurto 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 court’s written opinion did not make 

specific findings on Ms. Basurto’s arguments. But 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 factor 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 express 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) (“Specific fact-finding on the record has been deemed 

unnecessary for imposition of fines under [a prior version of 18 U.S.C. 

§ 3572, which set out the factors governing imposition of a fine].”). “It is 

sufficient that the record reflects the basis for the 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, ordering and reviewing supplemental 

briefing, providing a general statement of reasons for imposing the fine, 

and stating that the relevant sentencing factors had been considered. We 

have no reason to believe that the district court ignored Ms. Basurto’s 

arguments against a fine. 
6 

IV. The district court did not clearly 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 collateral. But this finding was not clearly 

erroneous. 

 Ms. Basurto argues that she could not obtain a loan because she is 

indigent. But this argument overlooks the fact that she co-owns a house 

unencumbered by a mortgage. Ms. Basurto’s co-ownership of the house 

provided her with collateral to offer a lender. 

 According to Ms. Basurto, she could not use the house as collateral 

because state law prohibits sale of the house without 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 could reasonably reject 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. Basurto did not know where her husband was, she could 

sell the house without his consent upon completion of five tasks: 

1. File a petition stating why the transaction would be desirable. 

 

5

 State law would also prohibit Ms. Basurto from mortgaging the house 

without spousal consent, but Ms. Basurto does not argue this point. See 

N.M. Stat. Ann. § 40-3-13(A). 
7 

2. Obtain court appointment 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 husband 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) would not be able to prove that her 

husband’s location was “unknown to anyone” and (2) could not afford the 

non-attorney costs associated with the procedure, such as publishing 

notices in a local newspaper. Appellant’s Opening Br. at 28.6

 The district 

court could reasonably reject these arguments. The statutory procedure 

required only that a spouse’s location was “unknown to the other spouse 

[Ms. Basurto]”; the statute did not require Ms. Basurto to prove that her 

 

6

 Ms. Basurto presented these arguments when stating that the district 

court had disregarded her contentions about an inability to sell the house. 
8 

husband’s location was unknown to anyone. N.M. Stat. Ann. § 40-3-16(A). 

And Ms. Basurto presented no evidence of an inability to pay the costs 

associated with the statutory procedure. 

 Ms. Basurto would not need to use the statutory procedure if the 

husband consented to a sale. According to Ms. Basurto, spousal consent 

was impossible because she did not know where the husband was. But the 

record does not show that Ms. Basurto ever attempted to contact her 

husband, much less that she was unable to locate him or obtain his consent. 

In fact, Ms. Basurto’s appeal briefs suggest the opposite: Ms. Basurto 

states that one of her daughters has been 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 disappeared and his location is unknown to anyone.” 

Appellant’s Opening Br. at 7, 28-29. 

 In these circumstances, the district court could reasonably conclude 

that a lender would be willing to loan money to Ms. Basurto with the house 

as collateral. Ms. Basurto disagrees, contending that she would be 

considered a poor credit risk. 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 err 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 the 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 parties 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 cause is certainly relevant when 

she is arguing that the Court should not impose a fine, it is not 

relevant once the Court decides to impose a fine. At that stage, 

difficulty to the defendant is not the issue; the sole issue is 

whether [Ms. Basurto] can pay the fine. 

R., vol. I at 254. Ms. Basurto challenges this reasoning, arguing that the 

district court should have treated hardship 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 offers a different interpretation of the 

district court’s language, arguing that the district court incorrectly 

reasoned that hardship is immaterial regarding the amount of the fine. But 

Ms. Basurto did not raise this interpretation of the district 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) (declining 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 sentencing factors in 18 U.S.C. § 3572(a).8

 Section 

3572(a) requires the district court to consider factors including the 

defendant’s income, earning capacity, financial resources, and the burden 

of the fine on the defendant. 18 U.S.C. § 3572(a)(1)-(2) (2012). Similarly, 

the guidelines require the district court to consider the defendant’s ability 

to pay and the burden on the defendant. 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 fine will cause.” R., vol. I at 254. The 

court simply noted that ability to pay and hardship are distinct inquiries, 

and they are. Ms. Basurto elsewhere recognizes this distinction, stating 

that “[t]he [sentencing] factors that must be considered also include those 

specific to fines: the defendant’s ability to pay, which is determined by the 

defendant’s income, earning capacity, and financial 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 defendant, her family and her financial resources, 

 

8

 The district court was also required to consider the sentencing factors 

in 18 U.S.C. § 3553(a). The district court’s consideration of the factors in 

§ 3553(a) is not at issue 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 and ability to pay 

are distinct considerations. 

 In her briefs and petition for rehearing, Ms. Basurto suggested a 

parade of horribles if the court ignores hardship in deciding whether to 

impose a fine. But the district court did not ignore the hardship; the court 

simply observed the differences 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 erroneous 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 argues 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 house had been connected to her illegal behavior. In our 

view, these factual findings were not clearly erroneous. 
12 

 The record includes three facts supporting the district court’s finding 

that several of Ms. Basurto’s family members had been aware of Ms. 

Basurto’s drug activity.9

 First, Ms. Basurto’s adult daughter knew the combination 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 found in the son-in-law’s car. 

 Third, Ms. Basurto kept items consistent with drug dealing—a scale, 

small plastic baggies, and a razor blade—in plain view in her bedroom. 

Based on these three facts, the district court could reasonably find 

that several of Ms. Basurto’s family members had known about the drug 

activity and chose to continue residing with Ms. Basurto anyway. 

 In addition, the district court could 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 handgun in her house. 

 

9

 Ms. Basurto’s one-year-old granddaughter also lived with Ms. 

Basurto. Ms. Basurto argues that “of course . . . [the] granddaughter was 

completely innocent.” Appellant’s Opening Br. at 47-48. The 

granddaughter’s presence in the house does not affect our analysis. 
13 

Even if Ms. Basurto had conducted drug transactions elsewhere, the district 

court could reasonably infer that Ms. Basurto’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. Basurto’s live-in family members had known of the 

drug crimes and (2) Ms. Basurto’s house had been connected to the drug 

crimes. 

VII. The district court did not abuse its discretion by failing to 

address the risk of recidivism caused by the fine. 

 Ms. Basurto also argues that the district court failed to consider the 

risk that the fine would 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 fine might “nudge [Ms. Basurto] into further profitbearing criminal activity that she might not otherwise commit.” Supp. R. at 

23.