     Case: 09-20555   Document: 00511223517    Page: 1   Date Filed: 09/02/2010




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

                                                FILED
                                                               September 2, 2010

                                  No. 09-20555                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plainitiff-Appellee,
v.

MARTHA DENISE GONZALES,

                                            Defendant-Appellant.




                  Appeal from the United States District Court
              for the Southern District of Texas, Houston Division




Before STEWART, PRADO, and ELROD, Circuit Judges.
PER CURIAM:
        At issue is whether the district court plainly erred by ordering Martha
Denise Gonzales, upon revocation of her probation, to immediately pay the
balance of a previously imposed fine. Based on the record before us, it is unclear
whether the district court considered Gonzales’s “financial resources,”as required
by 18 U.S.C. § 3572(a)(1) & (2), in ordering the immediate payment of that fine.
Therefore, we VACATE and REMAND.
        In September 2006, Gonzales pleaded guilty, pursuant to a written plea
agreement, to one count of aiding and abetting health care fraud in violation of
18 U.S.C. § 1347. In May 2007, the district court sentenced her to five years of
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                                   No. 09-20555

probation, with a condition of six months of non-prison confinement, a $5,000
fine, and a $100 special assessment. The district court ordered Gonzales to
immediately pay the $100 special assessment and to make monthly payments
of $100 on the fine, over a period of 50 months, to commence 60 days after the
judgment.
      In July 2009, the Probation Office filed a petition to revoke Gonzales’s
probation based on five violations of her conditions of probation. During the
revocation hearing, Gonzales pleaded guilty to the violations, which were two
forgeries of financial instruments, theft of property, failure to report to her
probation officer, and failure to report her change of address and employment.
      At the hearing, the district court revoked Gonzales’s probation, and
sentenced her to twenty-one months of imprisonment in the custody of the
Federal Bureau of Prisons. The district court also noted that there was a $4,000
balance due on her fine and directed the Government “to take judgment,
immediate judgment, if you haven’t already against Miss Gonzales for that
4,000-dollar judgment.”     The district court did not impose a new term of
supervised release. In the written judgment, the district court ordered Gonzales
to immediately pay a lump sum of $4,000. Gonzales timely appealed.
      On appeal, Gonzales asserts that the district court plainly erred by
ordering her to immediately pay the $4,000, without considering her financial
circumstances. This court reviews the district court’s order for plain error
because Gonzalez did not object before the district court. See United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008). In order to find plain error, an
appellate court must find (1) an “error or defect—some sort of ‘[d]eviation from
a legal rule’” that is (2) plain (clear or obvious, rather than subject to reasonable
dispute, which (3) “affected the appellant’s substantial rights.” Puckett v. United
States, 129 S.Ct. 1423, 1429 (2009) (internal citation omitted). The decision to
reverse under plain-error review is discretionary, and this court will not correct

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                                      No. 09-20555

the error unless it “seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” See United States v. Olano, 507 U.S. 725, 736 (1993).
       District courts are required to consider a defendant’s financial resources
when determining a schedule for paying a fine. See 18 U.S.C. § 3572; United
States v. Walker, 74 F.3d 1236, 1995 WL 783357, at *2 (5th Cir. Nov. 28, 1995)
(unpublished) (remanding case to the district court to consider defendant’s
financial resources in determining schedule of payment for a fine);1 see also
United States v. Myers, 198 F.3d 160, 168-69 (5th Cir. 1999) (holding that, under
18 U.S.C. § 3664, which governs the issuance and enforcement of restitution
orders, the district court plainly erred by ordering an immediate lump-sum
payment where the defendant had no assets). Section 3572, titled “Imposition
of a sentence of fine and related matters,” states in relevant part:
       (a) Factors to be considered. --In determining whether to impose a
       fine, and the amount, time for payment, and method of payment of
       a fine, the court shall consider, in addition to the factors set forth in
       section 3553(a)--

              (1) the defendant’s income, earning capacity, and financial
              resources;
              (2) the burden that the fine will impose upon the defendant,
              any person who is financially dependent on the defendant, or
              any other person (including a government) that would be
              responsible for the welfare of any person financially
              dependent on the defendant, relative to the burden that
              alternative punishments would impose.
       Section 3572(d), titled “Time, method of payment, and related items,” also
provides that a “person sentenced to pay a fine or other monetary penalty,
including restitution, shall make such payment immediately, unless, in the
interest of justice, the court provides for payment on a date certain or in



       1
        Because the court issued this unpublished opinion prior to January 1, 1996, it is
precedential. See 5TH CIR . R. 47.5.3 (providing that unpublished opinions before January 1,
1996 are precedent).

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                                      No. 09-20555

installments.” 18 U.S.C. § 3572(d). Therefore, under the plain language of
Section 3572, when determining the schedule for payment of a fine, a court must
consider a defendant’s financial resources, and if it is “in the interest of justice,”
the court may allow payment in installments.
      Even when a court is addressing a revocation situation, the statutory
requirement remains the same. See 18 U.S.C. § 3572. We do not decide whether
the district court plainly erred here, because the record is unclear as to whether
the district court, upon revoking probation, considered Gonzales’s financial
circumstances in ordering the immediate payment of a previously imposed fine.2
Accordingly, we remand so that the district court can clarify whether it had
considered Gonzales’s financial resources, as required by 18 U.S.C. § 3572,
before ordering the immediate payment of the fine.
     In summary, the order is VACATED and REMANDED for reconsideration
in light of this opinion.




       2
         Although the colloquy during the probation-revocation hearing does not show that the
district court considered Gonzales’s financial resources, we note that the district court had
previously sentenced Gonzales, and that the schedule of payments form in the revocation
judgment states that the district court “assessed the defendant’s ability to pay.”

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