     Case: 14-30223   Document: 00512958889     Page: 1   Date Filed: 03/05/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                 No. 14-30223                       March 5, 2015
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                         Plaintiff-Appellee

v.

ANTHONY REUBEN RILEY,

                                         Defendant-Appellant

Consolidated with No. 14-30226

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee
v.

MICHAEL PAUL BOYTER,

                                         Defendant-Appellant




                Appeals from the United States District Court
                    for the Western District of Louisiana
                          USDC No. 5:12-CR-205-3
                          USDC No. 5:12-CR-205-2
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                                 No. 14-30223 c/w 14-30226

Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge. *
PER CURIAM: **
       Anthony Reuben Riley pleaded guilty to a superseding indictment
charging him with two counts of filing a false Form 8300. Michael Paul Boyter,
who was charged in the same superseding indictment, pleaded guilty to one
count of wire fraud and one count of attempt to evade or defeat tax.                       In
connection with their guilty pleas, Boyter and Riley entered into a “Consent
Decree of Forfeiture,” whereby they agreed to be jointly and severally liable for
a monetary judgment in the amount of $1.3 million dollars. As to Riley, the
district court imposed a 15-month sentence and an above-guidelines fine in the
amount of $100,000 ($50,000 as to each count). Boyter received a 60-month
sentence, was ordered to pay restitution in the amount of $290,381, and was
assessed an above-guidelines fine in the amount of $200,000 ($100,000 as to
each count). Both Riley and Boyter appeal the district court’s imposition of an
above-guidelines fine. Their cases have been consolidated on appeal.
            This court reviews the reasonableness of a defendant’s sentence,
including a fine, for abuse of discretion. See United States v. McElwee, 646
F.3d 328, 337–40 & n.8 (5th Cir. 2011).                  “A district court’s finding on a
defendant’s ability to pay a fine is a factual one, subject to appellate review
under the clearly erroneous standard.” United States v. Rodriguez, 15 F.3d
408, 414 (5th Cir. 1994). The defendant bears the burden of establishing an
inability to pay. McElwee, 646 F.3d at 338–39.




       *   District Judge for the Eastern District of Texas, sitting by designation.

       **Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.



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                           No. 14-30223 c/w 14-30226

      Riley asserts that the district court failed to adequately consider the
statutory factors in 18 U.S.C. § 3553(a) and § 3572, as well as United States
Sentencing Guidelines (“U.S.S.G.”) § 5E1.2(d), to justify a fine above the
recommended advisory range. Riley asserts the district court failed to consider
his ability to pay the fine given his term of imprisonment, the forfeiture of all
business assets, and the $1.3 million civil judgment he is jointly and severally
liable for paying.   Riley contends that the $100,000 fine is excessive and
unreasonable and therefore should be vacated.
      Riley’s objection to the fine before the district court—that it “constitutes
an upward departure”—did not inform the court that it may have erred by
failing to consider the appropriate statutory factors, including Riley’s ability to
pay a fine. Accordingly, Riley’s argument is reviewed for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To
establish plain error, Riley must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If Riley makes such a showing, this court has the discretion
to correct the error, but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
      The record reveals that, contrary to Riley’s assertion, the district court
considered all the relevant statutory balancing factors, as well as the factors
set forth in § 5E1.2(d). In considering the need for the combined sentence to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment, and afford adequate deterrence, see U.S.S.G. § 5E1.2(d)(1); 18
U.S.C. § 3553(a)(2)(A), (B), the district court noted that Riley’s actions helped
to facilitate the drug trafficking trade. Further, although Riley had no prior
criminal history himself, the district court noted that his actions aided
criminals with extensive criminal histories. See § 3553(a)(1). The court further



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                          No. 14-30223 c/w 14-30226

noted that Riley benefitted financially from the criminal enterprise, which the
court described as a “financially motivated crime.” Because the presentence
report (“PSR”) did not recommend against imposing a fine, the PSR did not
trigger a requirement that the district court make express findings on Riley’s
ability to pay. See United States v. Voda, 994 F.2d 149, 155 n.14 (5th Cir.
1993); United States v. Matovsky, 935 F.2d 719, 722 (5th Cir. 1991).
Additionally, Riley did not object to the financial information provided in the
PSR, nor offer any evidence to show that he was unable to pay a fine. See
Matovsky, 935 F.2d at 722. Riley’s disagreement with the district court’s
weighing of the sentencing factors does not show that the court committed
error, plain or otherwise, in imposing the $100,000 fine. See United States v.
Hernandez, 633 F.3d 370, 375–76 (5th Cir. 2011).
      Boyter contends that the fine imposed in his case is unreasonable given
that he is “financially destroyed” due to the $1.3 million monetary judgment
and $290,391 restitution order. Boyter points out his indigent status and
contends that the fine would be unduly burdensome to his family who is
dependent on him, especially given the other financial obligations that have
resulted from his convictions. Boyter further asserts that the district court
improperly considered his socioeconomic status when imposing the above-
guidelines fine. Boyter contends the fine was greater than necessary and
unwarranted based on the relevant factors, and therefore should be vacated.
      As with Riley, the PSR did not make a recommendation as to whether a
fine should be imposed after setting forth the costs of incarceration. Although
a defendant can rely on a PSR to establish an inability to pay, see United States
v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002), the PSR did not necessarily
indicate that Boyter was unable to pay a fine. In his reply brief, Boyter
acknowledges that the $1.3 million monetary judgment and restitution debt



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                          No. 14-30223 c/w 14-30226

have been paid in full, but asserts that he is now indigent. The fact that Boyter
may be indigent and that the fine may impose a financial burden upon him,
however, are not grounds to vacate the fine. See Matovsky, 935 F.2d at 723;
§ 5E1.2(d).
      Additionally, Boyter’s argument that the district court improperly
considered his socioeconomic status when imposing the fine is unavailing.
When the court’s statement is reviewed in its entirety, it is evident that the
district court did not consider Boyter’s socioeconomic status when choosing to
vary from the guideline range. Cf. United States v. Painter, 375 F.3d 336, 339
(5th Cir. 2004).      Rather, the district court properly considered the
circumstances of the offense, which included the financial motivation behind
the crime. See 18 U.S.C. § 3553(a)(1); U.S.S.G. § 5E1.2(d)(1). The district court
also properly considered the length of time the conspiracy lasted, the fact that
Boyter assisted the drug trafficking trade, and the need to promote respect for
the law. See 18 U.S.C. § 3553(a)(1), (a)(2)(A); U.S.S.G. § 5E1.2(d)(1). Boyter
has failed to show that the district court abused its discretion in imposing the
$200,000 fine. See McElwee, 646 F.3d at 337–40 & n.8.
      AFFIRMED.




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