                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3050
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
    v.                                  * District Court for the
                                        * Western District of Arkansas.
Jose Luis Martinez,                     *
                                        *      [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: November 15, 2010
                                 Filed: February 14, 2011
                                  ___________

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
                              ___________

PER CURIAM.

       Pursuant to a plea agreement, Jose Luis Martinez pled guilty to knowingly
possessing with intent to distribute a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
The United States Probation Office prepared a presentence investigation report (PSR)
calculating a United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of
70 to 87 months imprisonment, two to three years supervised release, and a $12,500
to $1,000,000 fine. The district court1 reviewed the PSR, read the parties’ sentencing
memoranda, heard the testimony of five witnesses, listened to the arguments of
counsel and considered Martinez’s allocution. The district court granted the
government’s motion for a downward departure, pursuant to U.S.S.G. § 5K1.1, based
on Martinez’s substantial assistance to authorities, reducing Martinez’s advisory
Guidelines range to 57 to 71 months imprisonment, two to three years supervised
release, and a $10,000 to $1,000,000 fine. The court sentenced Martinez to 66 months
imprisonment and three years supervised release, and imposed a fine of $50,000, with
no interest accruing. The fine could be paid immediately or upon a schedule of $25
per quarter while Martinez is imprisoned, and upon release, $200 monthly, or ten
percent of his monthly household income, whichever is greater.

       Martinez appeals the amount of his fine. Because Martinez did not object to the
fine at sentencing, we review for plain error. See United States v. Vaughn, 519 F.3d
802, 804 (8th Cir. 2008) (“If a defendant fails to object timely to a procedural
sentencing error, the error is forfeited and may only be reviewed for plain error.”).
“Under plain error review, [Martinez] must show: (1) an error; (2) that is plain; and
(3) that affects substantial rights.” United States v. Alston, 626 F.3d 397, 405 (8th Cir.
2010) (internal quotation marks omitted). We will not correct a plain error “unless it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Williams, 624 F.3d 889, 897 (8th Cir. 2010). It is Martinez’s burden
to show “there is a reasonable probability he would have received a lighter sentence
but for the error.” United States v. Brewer, 624 F.3d 900, 909 n.6 (8th Cir. 2010)
(quoting United States v. Bain, 586 F.3d 634, 640 (8th Cir. 2009)).

      Martinez cannot carry his burden. He contends (1) the fine is unreasonable
because the district court failed to consider Martinez’s ability to pay the fine and the


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.

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financial impact the fine places on Martinez and his dependants, and (2) there is “no
evidence that the district court considered the pertinent factors prior to imposing the
fine.” Martinez calculates that, if he paid the minimum monthly amount permitted
under the district court’s order, he would have paid less than half the fine by the time
his supervised release is terminated. He also speculates, based on his wife’s testimony
that she is having trouble making ends meet now, his payment of any amount larger
than the $10,000 minimum would cause his family to suffer severe hardship. Except
for the amount of the fine itself, Martinez points to no evidence the district court failed
to consider either his ability to pay or the fine’s impact on his family. The district
court considered that Martinez has talent, having been a disc jockey and a sales
representative, and also involved in his own legitimate business. The court found
Martinez has “ways in which to make money without dealing drugs.” Furthermore,
the PSR indicates Martinez possesses significant assets, such as home equity and a
rental property, which might be liquidated over time to pay all or a portion of the fine.
There is no basis to conclude the district court failed to consider Martinez’s ability to
pay or the fine’s impact on his family.

       Martinez also argues the district court plainly erred because the sentencing
transcript does not indicate the district court considered the U.S.S.G. § 5E1.2(d)
factors in determining the amount of the fine. According to Martinez, “the only
consideration that the judge used regarding the fine was” the court’s observation that
Martinez’s drug distribution was “a business and it was about money.” This argument
has no merit. As we observed in Alston, 626 F.3d at 405, the district court “referenced
[Martinez’s] ability to work while in prison, and the court established an installment
schedule for payment of the fine.” The court also discussed Martinez’s employment
history, and the PSR shows Martinez owns significant assets. See United States v.
Herron, 539 F.3d 881, 888-89 (8th Cir. 2008) (finding no plain error where
information in the PSR, sentencing memoranda and counsels’ arguments “provide[d]
sufficient information to establish that the factors were considered and that [the
defendant] failed to establish that he could not pay or was not likely to be able to pay

                                           -3-
a fine”). The district court did not plainly err in determining the amount of Martinez’s
fine.

      Accordingly, we affirm.
                     ______________________________




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