     Case: 11-30780     Document: 00511826846         Page: 1     Date Filed: 04/18/2012




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

                                                                            FILED
                                                                           April 18, 2012
                                     No. 11-30780
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCOS TULIO RUIZ, also known as Marco Tulio Ruiz, also known as Marco
Tulio Santos-Ruiz, also known as Marcos Ruiz, also known as Marcos Santos,
also known as Marco Santos M.S., also known as Marco Santos,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-92-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Marcos Tulio Ruiz appeals the district court’s imposition of a $3,000 fine
following his guilty-plea convictions for smuggling goods from the United States
and fraud and misuse of a permanent resident card. Ruiz contends that the fine
is unreasonable because, as the presentence report (PSR) determined, he does
not have the ability to pay the fine given the economic conditions in Honduras.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30780

He also asserts, for the first time on appeal, that the fine is unreasonable
because the Guidelines fine table is not grounded in the proper empirical data.
      We review a sentencing decision for “reasonableness,” applying the abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); Rita v.
United States, 551 U.S. 338, 351 (2007). The Guidelines state that “[t]he court
shall impose a fine in all cases, except where the defendant establishes that he
is unable to pay and is not likely to become able to pay any fine.” U.S.S.G.
§ 5E1.2(a); see United States v. Fair, 979 F.2d 1037, 1040 (5th Cir. 1992). The
defendant bears the burden of proving that he is unable to pay a fine, and he
may use the PSR as proof of inability to pay. United States v. Magnuson, 307
F.3d 333, 335 (5th Cir. 2002). If the district court adopts the PSR but “chooses
to disregard the [PSR’s] recommendation [on fines], it must make specific
findings regarding the defendant’s ability to pay a fine.” United States v.
Landerman, 167 F.3d 895, 899 (5th Cir. 1999) (citing Fair, 979 F.2d at 1041).
      In the instant case, the district court did not reject or depart from the
adopted PSR’s recommendation on a fine, and as a result, the court was not
required to make specific findings regarding Ruiz’s ability to pay the fine.
Unlike the PSR in Fair, which explicitly stated that the defendant lacked either
the present or the future capacity to pay a fine, see Fair, 979 F.2d at 1040, the
PSR here determined only that based on Ruiz’s “present financial status, it does
not appear he has the ability to pay a fine.” The district court’s imposition of a
fine payable in the future, therefore, did not contravene the PSR’s
recommendation. Cf. United States v. Brantley, 537 F.3d 347, 352 (5th Cir.
2008). Moreover, Ruiz’s unreasonableness argument focuses on his inability to
pay the fine once he is deported to Honduras, which he asserts has a much lower
standard of living than the United States. However, the district court allowed
for the possibility of any future hardships by ordering that the payment amount
could either be increased or decreased depending on Ruiz’s ability to pay. Under
these circumstances, the district court did not abuse its discretion by imposing

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                                 No. 11-30780

the fine. See United States v. Altamirano, 11 F.3d 52, 53-54 (5th Cir. 1993);
United States v. Matovsky, 935 F.2d 719, 723 (5th Cir. 1991).
      Ruiz raised his empirical data argument for the first time in his reply
brief. This court ordinarily does not consider such arguments. United States v.
Ramirez, 557 F.3d 200, 203 (5th Cir. 2009); United States v. Aguirre-Villa, 460
F.3d 681, 683 n.2 (5th Cir. 2006). Moreover, the argument is subject to plain
error review only. See United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008). We have consistently held that we will not second guess a
within-guidelines sentence simply because the district court did not undertake
an analysis of the empirical data underlying each guideline provision or because
the particular guideline provision at issue is not empirically-based. See United
States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 367 (5th Cir. 2009). Accordingly, Ruiz cannot show any
error, plain or otherwise. Ruiz’s convictions and sentences are AFFIRMED.




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