     Case: 11-30602     Document: 00511827936         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-30602
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAFAEL NAVA-PALACIOS, also known as Salvador Ruben Escamilla, also
known as Salvador R. Escamilla, also known as Rafael Arreto-Palacios, also
known as Rafael Matos-Palacios, also known as Rafael P. Nava,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-18-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Rafael Nava-Palacios (Nava) appeals the district court’s imposition of a
fine of $5,000 after his entry of a guilty plea to illegal use of a social security
number and illegal reentry into the United States following previous
deportation. Nava contends that the fine is unreasonable because, as the
presentence report (PSR) determined, he does not have the ability to pay the fine


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30602

given the economic conditions in Mexico. He also asserts that the fine is
unreasonable because it constitutes an unwarranted disparity among similarly
situated defendants convicted of illegal reentry.
      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 proof of
inability 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 Nava’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, the PSR here determined only
that based on Nava’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, Nava’s
unreasonableness argument focuses on his inability to pay the fine once he is
deported to Mexico. At sentencing, however, the district court explicitly stated
that payment of the fine was “subject to [Nava’s] deportation.” Although the
judgment does not expressly state the condition that payment of the fine is
subject to Nava’s deportation, the district court’s oral pronouncement of the
condition at sentencing controls. See United States. v. Torres-Aguilar, 352 F.3d
934, 935 (5th Cir. 2003). Under these circumstances, there was no abuse of

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                                  No. 11-30602

discretion on the part of the district court in imposing the fine. See 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). However, the judgment’s failure
to expressly state the condition that Nava’s payment of the fine is subject to his
deportation, constitutes a clerical error that is correctable on remand pursuant
to FED. R. CRIM. P. 36.
      Additionally, Nava’s argument regarding the need to avoid unwarranted
sentencing disparities among defendants convicted of illegal reentry, which he
raises for the first time on appeal, is unavailing since Nava was convicted of
illegal reentry and illegal use of a social security card. Nava has not established
the existence of any sentencing disparity because he does not cite to any
evidence that fines have not been imposed in cases with similar facts. See
United States v. Sanchez-Ramirez, 497 F.3d 531, 535 n.4 (5th Cir. 2007); United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Thus, he has failed to show
any error, plain or otherwise, with respect to the imposition of the fine by the
district court. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      Accordingly, Nava’s convictions and sentences are AFFIRMED. The case
is REMANDED for correction of the clerical error pursuant to FED. R. CRIM. P.
36.




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