     Case: 17-11088      Document: 00514607184         Page: 1    Date Filed: 08/20/2018




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

                                    No. 17-11088                             FILED
                                  Summary Calendar                     August 20, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARQUIS KONRAD STREATY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-59-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Marquis Konrad Streaty appeals the $5,000
special assessment imposed by the district court pursuant to 18 U.S.C. §
3014(a). Streaty argues that the district court clearly erred in determining
that he was “non-indigent” for purposes of § 3014(a) based, in part, on his
401(k) retirement account with a balance of $17,000. He also complains about




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11088

the “conclusory manner” in which the court determined that he was non-
indigent and claims that the finding is not supported by the record.
      The district court’s determination of whether Streaty is indigent for
purposes of the special assessment under § 3014(a) is an issue of fact that this
court reviews for clear error. See United States v. Harris, 702 F.3d 226, 229
(5th Cir. 2012). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” United States v. Pacheco-Alvarado,
782 F.3d 213, 220 (5th Cir. 2015) (internal quotation marks and citation
omitted).
      This court has yet to articulate a test for determining whether a
defendant is indigent for purposes of § 3014. As such, this court applies the
standard that otherwise applies to fines assessed in criminal cases. Under that
standard, “[t]he defendant bears the burden of proving his inability to pay a
fine, and may rely upon the [presentence report] to establish his inability to
pay.” United States v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002).
      Streaty has not satisfied his burden. His argument that he is unable to
pay the $5,000 special assessment is based on his own ignorance regarding the
withdrawal provisions regarding his $17,000 retirement account. He cannot
feign ignorance regarding the terms of his own asset and satisfy his burden of
proving that he is unable to pay the special assessment. Thus, Streaty has not
shown that the district court clearly erred when it considered the $17,000
balance in his 401(k) retirement account in determining that he was non-
indigent for purposes of § 3014(a). See Harris, 702 F.3d at 229.
      To the extent that Streaty complains about the district court’s failure to
make an express finding that he was non-indigent prior to imposing the special
assessment under § 3014(a), the statute does not require such a finding. At
sentencing, the court adopted the presentence report and its addendum,



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                                No. 17-11088

including the representations regarding Streaty’s financial worth, and
implicitly found that he was non-indigent. The court’s implicit finding of fact
in this regard is sufficient under this court’s precedent. See United States v.
Rodriguez-Rodriguez, 388 F.3d 466, 468 n.8 (5th Cir. 2004).
      Streaty further argues that the district court’s implicit determination
that he was non-indigent for purposes of the § 3014(a) special assessment is
not supported by the record given the court’s explicit finding that he did not
have the financial resources or future earning capacity to pay a fine. As the
Government notes, there is nothing inherently contradictory about finding
that Streaty could pay a $5,000 special assessment but could not pay the
Guidelines fine range for his offense, which ranged from $30,000 to $250,000.
      The judgment of the district court is AFFIRMED.




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