### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30734 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. RAMIRO REYES-SANCHEZ, also known as Ramiro Sanche z - S a n c h ez, also known as Reyes R amiro Sanchez, also known a s O v i dio Mejilla-Escorcia, also known as Daniel Pena, Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:12-CR-108-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Ramiro R eyes-Sanchez (Reyes) appeals his 20-month sentenc e of imprisonment and $5000 fine imposed following his guilty-plea conviction for being found unlawfully present i n the United States following d eportation. R e y es argues that the district court failed to provide adequate r e asons f or making a variance six months above the top of the sentencing guidelines range. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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He complains that the district court failed to give consideration to his a ltruistic

reas o n s f

o r e n tering the United States and gave t oo m uch weight to his p ast misdemeanor offenses and his informal r emovals f rom the country that had occurred fourteen years earlier. Because Reyes did not s pecifically object in the district c ourt to the district court’s failure to articulate adequate reasons for th e sentence, r eview is for plain

error. See Puckett v. United States , 556 U.S. 129, 134-35 ( 2009); United States

v. Whitelaw , 580 F.3d 256, 259 (5th Cir. 20 0 9 )

. In i mposing a sentence six months above the guidelines range, the district court considered the arguments of the p arties, Reyes’s criminal conduct and history, the n eed for deterrence, and the protection of the public. The record reflects that the district c ourt gave factspecific reasons f

or the variance, which included consideration o f the relevant § 3553(a) s entencing factors and that it did not give undue s ignificance to any irrelevant factors. See United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006). Reyes has not demonstrated that the district court f ailed to articulate a dequate

reasons for the sentence and, thus, he has failed to show procedural error, plain

or otherwise, that rendered h is sentence unreasonable. See Puckett, 556 U.S. at 135 ; United States v. Gall , 552 U.S. 38, 51 (2007). Insofar as Reyes objected in the district court t o the r easonableness of the sentence, he has not shown that the variance reflected an abuse of discretion on the pa rt of the district court, and thus, he has not demonstrated that the sentence was substantively unreasonable. See Gall , 552 U. S

. at 51; Rita v. United States , 551 U.S. 338, 356 (2007). Reyes a l s o challenges the fine imposed, arguing that it is substantively

u nr e a s o nable because the district court i gnored the stat e m e nt i n th e p r e s e nt e n c e rep o r t ( P S R) reflecting his inability to pay a fine based on his th en-current financial s tatus. He contends that the district cou r t was required to make specific f

indings to support the fine, and he also complains about paying a portion of the fine out of his prison wages.
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This court reviews the reasonableness of a defendant ’s sentence, including

a fine, for abuse of discretion. See United S tates v. McElwee , 646 F.3d 328, 338- 3 9 , 340 n.8 (5th Cir. 2011). Reyes did not object to the district co u r t ’ s consideration of his future earning capacity in imposing the fine, and thus, that argument is reviewed for plain error. See Puckett, 556 U.S. at 135. The Guidelines s tate that “[t]he court shal l i m p o s e a fine in a ll cases, except where the defendant establishes that he i s unable to pay and i s not likely to b ecome able to pay any f ine.” U.S.S.G. § 5 E1.2(a). If the district c ourt adopts the PSR but does not rely on the recommendation concerning the payment of a fine, i t is require d t o m a ke specific findings with respect to the defendant’s ability to pay a fi n e . United States v. L anderman , 1 67 F.3d 895, 899 (5th Cir. 1999). The district court’s r uling was not contrary t o the PSR’s recommendation based o n Reyes’s then-current financ i al s t at u s b e c a u s e th e district court imposed the f ine based on Reyes’s future ability to pay the fine. Furthermore, although not r equired to do s o , t h e district c ourt provided s pecific reasons for its determination that Reyes had the future ability to pay the fine. It pointed out that Reyes had prior work experience and would be only 35 years old when his sentence was c ompleted an d that he had reported no physical or mental problems precluding h is employment. Reyes has not disputed these facts. The d i s t r ict court’s determination that Reyes had the future ability to pay the f i n e
was p lausible based on the record and does not reflect a n abuse of discretion or
a clear or obvious error. See United States v . Rodriguez , 15 F .3d 408, 414-15 (5th Cir. 1994); Puckett , 556 U.S. a t 135. The district court was also e ntitled to order Reyes to h ave a portion of any i ncome earned in pris o n a t t r ib u ted to the pay m e n t o f t he fine. See. United States v. Brantley , 537 F.3d 347, 3 51-52 (5th Cir. 2008) (affirming the imposition of a fin e i n p a r t on the defendant’s ability to pay installments from his prison wages). The fact that the fine may impose

a financial burden upon him is not grounds to vacate th e fine. See United States
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v. M atovsky , 935 F.2d 7 19, 7 23 (5th Cir. 1991). The district c o urt did not abuse its discretion in imposing the fine. The sentence is AFFIRMED.

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