                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                          __________________

                              No. 93-1166
                          __________________



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                versus

     RONALD L. VODA, SR.,

                                         Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                   Northern District of Texas
         ______________________________________________

                            (June 16, 1993)


Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellant, Ronald Voda, Sr. (Voda), was sentenced to

a term of 5 years' probation and a $3,000 fine, payable $60 a

month, on his conviction, pursuant to his guilty plea, of one count

of negligent discharge of a pollutant through a point source into

navigable water in violation of a federal permit, contrary to 33

U.S.C. § 1319(c)(1)(A), a misdemeanor.    Voda appeals, challenging

only certain aspects of his sentence, namely the fine and the

following two conditions of his probation, viz:         (1) that he

surrender to the Mansfield Law Enforcement Center (Mansfield) on
June 2, 1993, to serve sixty calendar days; and, (2) that he not

possess a firearm during the probation.        Concluding that the

district court erred in imposing these two conditions, we vacate

Voda's sentence and remand for resentencing.

                   Facts and Proceedings Below

     Voda owned and operated Voda Petroleum, now defunct, an oil

recycling facility in White Oak, Texas.     On February 10, 1989,

special agents of the Environmental Protection Agency (EPA) sampled

effluent discharging from Voda's plant.   Test results on three of

the four samples taken revealed that more oil and grease discharged

into the water system than Voda's federal permit allowed. Based on

these test results, Voda pleaded guilty to one count of negligent

discharge of a pollutant.

     The Presentence Investigation Report (PSR) reflects that Voda

has no prior conviction and that Voda and his wife have a negative

net worth of $19,555.97 and a negative monthly cash flow of

$503.75. The PSR does not indicate that Voda has any prospects for

increasing his cash flow or net worth over the next several years

in his job as a high school chemistry teacher.1   The United States

did not challenge the PSR's recitations concerning Voda's financial

condition.

     The PSR does not indicate that Voda had any history involving

or being prone to violence or misuse of firearms.    Voda likes to

hunt and owns several firearms that he uses for recreational


1
     After his company went under, Voda, who is fifty-six,
returned to college, received a Bachelor of Science in Chemistry
from the University of Texas, and is now working in his second
year as a high school chemistry teacher.

                                2
hunting.

      As a result of Voda's guilty plea, he was sentenced to a

$3,000 fine and 5 years' probation subject to numerous conditions.

Four of the conditions are: (1) that Voda surrender to Mansfield on

June 2, 1993, to serve 60 calendar days; (2) that he reside at the

County Rehabilitation Center, 313 Ferrell Place, Tyler, Texas, for

a period of 120 days; (3) that he shall not possess a firearm

during his probation; and (4) that he pay the $3,000 fine at a rate

of   $60    per     month   beginning   60    days   after    his    release     from

Mansfield.          Mansfield is a local jail housing, among others,

offenders awaiting trial on a range of offenses including violent

felonies.

      After the sentence was imposed, Voda filed a Motion to Correct

Sentence pursuant to FEDERAL RULE       OF   CRIMINAL PROCEDURE 35(c), which was

denied.      Voda appeals challenging the fine, the designation of

Mansfield as the place to serve the sixty days, and prohibition of

firearms possession.

                                   Discussion

I. Designating Place of Confinement

      Voda contends that, under 18 U.S.C. § 3563(11), the district

court      lacked    the    authority   to    designate      the    place   of   his

confinement because the statute requires that the Bureau of Prisons

designate the place of confinement once the district court imposes

sentence for a specified period of time.2            Thus, Voda contends that


2
     Because this arrangement better accommodates his work
schedule, Voda expressly waived any argument that the imposition
of sixty days' confinement served over a sixty day period is
"imprisonment," as opposed to intermittent confinement, and thus

                                         3
the district court erred in sentencing him to serve time at

Mansfield.3

       As a condition of probation, 18 U.S.C. § 3563(b)(11) provides

that a convict may be required to "remain in the custody of the

Bureau of Prisons during nights, weekends, or other intervals of

time, totaling no more than the lesser of one year or the term of

imprisonment authorized for the offense, during the first year of

the term of probation." 18 U.S.C. § 3563(b)(11) (West Supp. 1993).

See U.S.S.G. § 5C1.1(c)(3).         The statute's plain language suggests

that   only   the   Bureau   of    Prisons    may   determine   the   place   of

confinement for sentences imposed under it.

       No prior cases have addressed whether a sentencing judge may,

as a condition of probation, designate the place of confinement for

sentences imposed under section 3563(b)(11).             However, many cases

have addressed the authority of a judge to specify the place of

incarceration where the sentence calls for imprisonment as opposed

to probation under 18 U.S.C. § 3621.4               These cases hold that a

court may recommend that a sentence imposed under section 3621 be

served in a particular prison or jail, but that only the Bureau of

Prisons   has   the   actual      authority   to    designate   the   place   of



in violation of section 3563. See United States v. Anderson, 787
F.Supp. 537, 539 (D. Md. 1992).
3
     Voda does not contest his sentence to the County
Rehabilitation Center in Tyler, a community corrections facility.
     We stayed the Mansfield portion of the sentence pending
resolution of the appeal.
4
     Similarly to section 3563, 18 U.S.C. § 3621 provides
expressly that "The Bureau of Prisons shall designate the place
of the prisoner's imprisonment."

                                       4
incarceration.     United States v. Jalili, 925 F.2d 889, 894 (6th

Cir. 1991) (citing United States v. Dragna, 746 F.2d 457, 458 (9th

Cir.    1984),   cert.   denied,    105     S.Ct.   1179   (1985))   (Dragna

interpreted 18 U.S.C. § 4082(a), which was replaced by section

3621, which Jalili addressed).            See generally, United States v.

Wilson, 112 S.Ct. 1351 (1992).       The Bureau of Prisons is given this

responsibility because the executive branch and not the judicial

branch is responsible for administering sentences.            Id.

       In other cases, courts rejected prisoners' requests to be

sentenced to particular jails, holding that only the Bureau of

Prisons has that authority.        See, e.g., Johnson v. Moore, 948 F.2d

517, 519 (9th Cir. 1991) (rejecting prisoner's section 1983 action

challenging decision of Bureau of Prisons to transfer prisoner to

new jail); Barden v. Keohane, 921 F.2d 476, 479-83 (3d Cir. 1990).

It is clear that the district court lacked the authority to

designate the place of confinement in sentencing Voda under section

3563(b)(11).

       The United States argues that even if the district court

lacked the authority to designate the place of incarceration under

3563(b)(11), the designation of Mansfield was permitted under

section 3563(b)(12), which, it asserts, allows a district court to

designate the community corrections facility at which one is

required to reside.5       Section 3563(b)(12) provides that as a

condition of probation a convict may be required to "reside at, or

participate in the program of, a community corrections facility


5
     There is no indication that the district court designated
Mansfield under section 12 as opposed to section 11.

                                      5
(including a facility maintained or under contract to the Bureau of

Prisons) for all or part of the term of probation."               18 U.S.C. §

3563(b)(12) (West Supp. 1993) (emphasis added).

     Assuming that a district court may designate the place of

confinement when imposing sentences under section 3563(b)(12),

nevertheless a community corrections facility is not a jail and the

Mansfield   Corrections    Facility       is   a   jail,    not   a   community

corrections facility.6     Although the term "community corrections

facility" is not defined by the statute,7 the notes to United

States Sentencing Guideline (U.S.S.G. or Guideline) section 5F1.1

define   "community   confinement"        as   "residence    in   a   community

treatment center, halfway house, restitution center, mental health

facility . . . ."         The term "community confinement" in the

Guidelines is evidently intended to interpret section 12, as

reflected by its use in U.S.S.G. § 5C1.1(c)(3).             Also, based on its

placement in section 3563(b), "community corrections facility"

appears to refer to rehabilitation facilities and half-way houses

(such as the County Rehabilitation Center where Voda is required to

reside after his confinement at Mansfield) and not jails.               Section

12 follows section 11 on confinement with the Bureau of Prisons and

is contained in a section dealing with conditions of probation, not

conditions of imprisonment.    Normally, conditions of probation are



6
     The Sixth Circuit held that district courts have the
authority to designate the place of confinement under U.S.S.G. §
5C1.1(d), which corresponds to 3563(b)(12). Jalili, 925 F.2d at
894.
7
     The legislative history also does not define the term. 1984
U.S.C.C.A.N., at 3182.

                                      6
intended to be less restrictive than imprisonment.8               Thus, the term

community corrections facility does not refer to jails.

      Because     section    3563(b)(11) specifically states that the

condition of probation is that one "remain in the custody of the

Bureau of Prisons" and because Mansfield is a jail and not a

community   corrections       facility,       the    district   court    erred     in

requiring   that    Voda's        sixty   days'     confinement   be    served     at

Mansfield. On remand, the district court may require Voda to serve

a period of confinement under the custody of the Bureau of Prisons

with a recommendation as to the place of confinement, may require

him to serve at a community corrections facility and perhaps

designate   the    place    of     such   confinement,    or    may    remove     this

condition of probation altogether.

II. Firearm Prohibition

      Next, Voda objects to the condition that prohibits him from

possessing a firearm during his probation.               No reason was given by

the   district    court     for    imposing    this    condition,      nor   is   any

suggested by the PSR or anything else in the record.                    The United

States argues that the firearm prohibition is warranted because

Voda's possession of a firearm may pose a risk to his probation

officer's safety, because Voda committed a serious offense, and

because this type of decision should be left to the discretion of

the district court.


8
     Often a sentence to a community corrections facility is a
downward departure from a recommended sentence of imprisonment.
See United States v. Parker, 902 F.2d 221, 222 (3rd Cir. 1990)
("We think it clear that a period of confinement [at a community
corrections facility] as a condition of probation . . . cannot
possibly be equated with an equivalent period of imprisonment.").

                                          7
     Prohibition of firearm possession is one of the permissible

discretionary conditions of probation expressly listed in section

3563(b).    Id. (9).     However, section 3563(b) provides that its

listed    conditions    may    be   imposed       "to   the   extent   that   such

conditions are reasonably related to the factors set forth in

section    3553(a)(1)    and   (a)(2)       and   to    the   extent   that   such

conditions involve only such deprivations of liberty or property as

are reasonably necessary for the purposes indicated in section

3553(a)(2)."9

     Under the Guidelines, firearm prohibition may be imposed as a

condition of probation:

     "If the instant conviction is for a felony, or if the


9
     Section 3553(a)(1) and (2) provide:

     "§ 3553.    Imposition of a sentence

          (a) Factors to be considered in imposing a
     sentence.SQThe court shall impose a sentence
     sufficient, but not greater than necessary, to comply
     with the purposes set forth in paragraph (2) of this
     subsection. The court, in determining the particular
     sentence to be imposed, shall considerSQ

                 (1) the nature and circumstances of the
            offense and the history and characteristics of the
            defendant;

                 (2) the need for the sentence imposedSQ
                      (A) to reflect the seriousness of the
                 offense, to promote respect for the law, and
                 to provide just punishment for the offense;
                      (B) to afford adequate deterrence to
                 criminal conduct;
                      (C) to protect the public from further
                 crimes of the defendant; and
                      (D) to provide the defendant with needed
                 educational or vocational training, medical
                 care, or other correctional treatment in the
                 most effective manner;"


                                        8
     defendant was previously convicted of a felony or used a
     firearm or other dangerous weapon in the course of the
     instant offense, it is recommended that the court impose
     a condition prohibiting the defendant from possessing a
     firearm or other dangerous weapon."          U.S.S.G. §
     5B1.4(b)(14).

     Section 5B1.4(b) gives the sentencing court discretion in

deciding   whether       or   not    to    impose     this    condition.     Id.

"Discretionary conditions of probation . . . must be `reasonably

related'   to   the   goals    of   sentencing      and   involve   `only   such

deprivations of liberty and property as are reasonably necessary.'"

United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993) (citing

18 U.S.C. § 3563(b) (condition that tax evader give probation

officer access to any financial information and fully cooperate

with IRS in years not subject to litigation was improper); United

States v. Pendergast, 979 F.2d 1289 (8th Cir. 1992) (condition that

wire fraud convict not possess alcohol excessive since no evidence

showed convict abused alcohol). The general purpose of the firearm

prohibition is to prevent convicts from using firearms to harm

others in the future; other purposes may include punishment and

deterrence.

     Neither    Voda's    charged    offense   nor    the    relevant    conduct

involving that offense had any relevance to or connection with the

use or possession of any firearm or dangerous weapon.                   Voda was

convicted of a nonviolent misdemeanor.              No persons were directly

endangered.     Voda's offense involved merely negligent misconduct,

and thus does not suggest that Voda had any intent to harm others

or to violate the law.        No evidence in the PSR indicates that Voda

has any tendency to violence in general or to abuse                      of (or


                                       9
carelessness with) firearms or that he poses any danger whatever to

the public.      Voda is still allowed to teach high school.               The

chance that Voda might shoot his probation officer is as unlikely

here as in any misdemeanor conviction.          Since Voda's past behavior

does not    indicate   that    his   possession    of   firearms   makes   him

dangerous, there is no need to impose this condition to protect the

public from future crimes by Voda.             Imposing this condition of

probation also does not serve the punishment and deterrence goals

of sentencing under the Guidelines.          Therefore, the district court

abused its discretion in imposing this firearms prohibition as a

condition of probation.

III.    Imposition of Fine

       As a condition of probation, the district court fined Voda

$3,000, to be paid at a rate of $60 per month beginning after

Voda's release from Mansfield.10           Voda contends that the district

court erred in thus fining him without any explanation, because the

court adopted the PSR findings reflecting Voda's inability to pay.

       The PSR shows that Voda has both a negative net worth and a

negative current and anticipated cash flow. At age fifty-six, Voda

is beginning a new career as a school teacher, a career in which he

will likely not receive substantial salary increases over the next

several years.    Voda is currently supporting his wife and a son who

is   over eighteen,    but    currently     unemployed.     See    U.S.S.G.   §

5E1.2(e)(3). Voda's future ability to pay a fine is questionable.11


10
     33 U.S.C. § 1319(c) specifies that the fine range is between
$2,500 and 25,000 for Voda's crime.
11
       There is also no evidence that Voda may have any hidden

                                      10
See United States v. Pattan, 931 F.2d 1035, 1044 (5th Cir. 1991),

cert. denied, 112 S.Ct. 2308 (1992) (fine vacated because it

interfered with convict's duty to support his family).12 As the PSR

reflected Voda's current and future inability to pay and the

government offered no contrary evidence, the imposition of a $3,000

fine appears unusual.   See United States v. Rowland, 906 F.2d 621,

623-24 (11th Cir. 1990) (fine vacated since no evidence showed

current or future ability to pay).    See Rivera, 971 F.2d at 895

(fine remanded for expression of reasons in light of confused

nature of record).

     Because the district court did not give reasons for its

decision to fine Voda, it is difficult for us to review the

district court's decision in this respect.13   Since we are vacating


assets that he could use to pay the fine or relatives with
sufficient assets to help him. See United States v. Hagmann, 950
F.2d 175, 185 (5th Cir. 1991), cert. denied, 113 S. Ct. 108
(1992) (that Hagmann was convicted of importing almost seven tons
of marihuana suggested that he had access to funds in excess of
those listed in his in forma pauperis affidavit and justified
$100,000 fine). In his memorandum filed below prior to
sentencing, Voda cited the PSR, expressly asserted his complete
inability to pay a fine, and requested that no fine be imposed.
12
     Voda's situation differs from that in United States v.
Matovsky, 935 F.2d 719 (5th Cir. 1991). There the defendant was
a relatively young, unemployed graduate student, with no
dependents, capable of obtaining future employment with a
sufficient income to allow him to pay his fine over time.
Matovsky, 935 F.2d at 720-723; United States v. O'Banion, 943
F.2d 1422, 1432 & n.11 (5th Cir. 1991) (fine may be based on
defendant's future ability to pay). Here, the United States did
not offer any evidence below, beyond the PSR, showing Voda's
ability to pay.
13
     A court may impose a fine, even where a defendant
demonstrates the current and future inability to pay it; however,
a court generally should not impose a fine in that situation
unless the facts show the need for such a punitive or equitable
sanction. U.S.S.G. § 5E1.2 (d). United States v. Rivera, 971

                                 11
Voda's sentence for other reasons, there is no need to review the

district court's decision to fine Voda at this time.

     If, on resentencing, the district court chooses to impose a

fine, we suggest that the district court give reasons for its

decision.      Although our decisions in Matovsky and Fair may not

require that a district court give reasons for imposing a fine in

every   case    in    which    the   PSR    contains   facts   suggesting     the

defendant's inability to pay, but does not recommend against a

fine, the special circumstances of this case suggest that reasons

would   at   the     least    be   most   appropriate,   and   helpful   in   any

subsequent appeal, should the court again impose a fine.14


F.2d 876, 895 (2d Cir. 1992); United States v.Fair, 979 F.2d
1037, 1041 (5th Cir. 1992); United States v. Matovsky, 935 F.2d
719, 721 (5th Cir. 1991); 18 U.S.C. § 3572 (West Supp. 1993 at
82); U.S.S.G. § 5E1.2. However, neither the Constitution, nor
the applicable sentencing statutes, nor the sentencing guidelines
categorically prohibit a court from ever imposing a fine where
the defendant has proven his inability to pay it.   Prior to the
enactment of the Guidelines, ability to pay was not considered as
a major factor in a court's decision to impose a fine. Instead,
ability to pay was considered later when the government attempted
to collect the fine. See e.g., United States v. Merritt, 639
F.2d 254, 257 (5th Cir. 1981). Constitutionally, courts are
limited in the penalty they can impose for nonpayment of criminal
fines because of inability to pay. Bearden v. Georgia, 103 S.Ct.
2064, 2068-71 (1983) (indigency no bar to imposing fine);
Williams v. Illinois, 90 S.Ct. 2018, 2023 (1970) (imprisonment,
beyond any already imposed prison sentence, could not be imposed
as a penalty for inability to a pay a fine.); Tate v. Short, 91
S.Ct. 668, 671 (1971). In 1986, the statute involving fines of
indigent prisoners, 18 U.S.C. § 3569, was repealed. New 18
U.S.C. § 3572 states that the ability to pay shall be considered
when a court imposes a fine. 18 U.S.C. § 3572. Similarly,
Section 5E1.2(f) of the Guidelines provides that if the defendant
shows an inability to pay, "the court may impose a lesser fine or
waive the fine altogether." U.S.S.G. § 5E1.2(f); Fair, 979 F.2d
at 1041.
14
     Normally, a district court does not have to express reasons
for imposing a fine as long as it is shown that the judge
considered the defendant's ability to pay. Matovsky, 935 F.2d at

                                           12
                            Conclusion

     As the district court lacked the authority to require Voda to

serve his confinement at Mansfield, and as the court abused its

discretion in imposing firearms prohibition as a condition of

probation, Voda's sentence is vacated and this case is remanded for

resentencing.   The mandate shall issue forthwith.

                               SENTENCE VACATED and CAUSE REMANDED




722 (no PSR showing of future inability to pay). In Matovsky, we
held that where the PSR contains fact findings suggesting a
present inability to pay, but not recommending against a fine,
"`the appellate court will not reverse the fine merely because no
express finding was made but will review the finding of ability
to pay necessarily implied by such consideration.'" Id. (citation
omitted).
     We held in United States v. Fair, that although the
defendant normally bears the burden of proof on the issue of
inability to pay: "[A] defendant may rely on the PSR to
establish his inability to pay . . . . When a sentencing court
adopts a PSR which recites facts showing limited or no ability to
pay a fine the government must come forward with evidence showing
that a defendant can in fact pay a fine before one is imposed."
979 F.2d at 1041 (emphasis added).
     If a defendant may truly rely on the unobjected to fact
findings of a PSR, containing no recommendation, to prove his
inability to pay, Fair suggests that a district court should give
reasons for disagreement therewith. Similarly, although we held
in Matovsky that we would not reverse a fine because reasons were
not given where the PSR does not recommend against imposing a
fine, we did not hold that a district court should not explain
the reasons for its sentence. In Matovsky, the facts suggested a
future ability to pay, and there was no objection below. The
present case differs from Matovsky in these respects.

                                13
