     Case: 10-30730     Document: 00511545187         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                            July 20, 2011
                                     No. 10-30730
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEPHEN BRUM,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CR-232-2


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Stephen Brum appeals the district court’s imposition of a fine of $5,000,
following his guilty plea to assault by striking, beating, and wounding in
violation of 18 U.S.C. §§ 113(a)(4) and 2. According to Brum, he presented
evidence in his motion to modify the judgment that he could not pay the fine
imposed by the district court. As such, he contends that under the holding of
United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992), the burden then
shifted to the Government to show that he could in fact pay the fine. He asserts

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-30730    Document: 00511545187      Page: 2   Date Filed: 07/20/2011

                                  No. 10-30730

that because the Government failed to do so, the district court plainly erred by
imposing the fine without making specific findings regarding his ability to pay.
      Because Brum failed to object to the imposition of the fine at sentencing,
review is for plain error. See United States v. McElwee, __ F.3d __, 2011 WL
2686447, at *5 (5th Cir. July 12, 2011)(general objection to sentence does not
preserve objection to the amount of the fine); United States v. Brantley, 537 F.3d
347, 351 (5th Cir. 2008). To show plain error, Brum must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). Brum has not made such a
showing.
      Brum’s reliance on Fair is misplaced since no presentence report was
prepared in his case. See United States v. Hodges, 110 F.3d 250, 252 (5th Cir.
1997); United States v. Martinez, 151 F.3d 384, 396 (5th Cir. 1998).               At
sentencing, Brum failed to present evidence of his inability to pay a fine, which
the district court ordered could be paid in monthly installments once Brum was
released onto supervised release. In its order denying Brum’s motion to modify
the judgment, the district court stated that it would reconsider modification of
its payment terms based upon Brum’s “actual [financial] circumstances.” The
district court adequately addressed Brum’s post-judgment arguments regarding
his alleged inability to pay. See McElwee, 2011 WL 268447, at *5 (court showed
that it considered defendant’s ability to pay). Under these circumstances, there
was no error. See Martinez, 151 F.3d at 396; United States v. Matovsky, 935 F.2d
719, 723 (5th Cir. 1991); United States v. Altamirano, 11 F.3d 52, 53-54 (5th Cir.
1993); United States v. Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994).
Accordingly, the judgment of the district court is AFFIRMED.




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