     Case: 17-30491      Document: 00514344059         Page: 1    Date Filed: 02/09/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-30491
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       February 9, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

BLAKE DAMIAN RODGERS,

                                                 Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:16-CR-139-1


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
        Blake Damian Rodgers appeals the special assessment of $5,000,
imposed with a sentence of 180 months in prison, following his guilty-plea
conviction of one count of producing child pornography, 18 U.S.C. §§ 2251,
3014.       According to Rodgers, the district court applied an incorrect legal
analysis to determine that he was non-indigent within the meaning of § 3014
because the court implicitly considered his potential future earnings. Because


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30491    Document: 00514344059     Page: 2   Date Filed: 02/09/2018


                                 No. 17-30491

Rodgers did not provide the district court the opportunity to correct the error
he alleges here, we review only for plain error. See United States v. Whitelaw,
580 F.3d 256, 259-60 (5th Cir. 2009). To establish plain error, Rodgers must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
such a showing, we have the discretion to correct the error but will do so only
if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
      We have not articulated a test for indigence under § 3014 that differs
from the standards otherwise applied in assessing fines for criminal conduct.
Our sister circuits that have considered a § 3014 standard for indigence have
found consideration of future earnings or employability appropriate. See, e.g.,
United States v. Kelley, 861 F.3d 790, 801 (8th Cir. 2017). In this context,
Rodgers has shown no clear or obvious error in the district court’s implicit
consideration of his potential future earnings in concluding he is non-indigent.
See Puckett, 556 U.S. at 135; United States v. Fields, 777 F.3d 799, 805 (5th
Cir. 2015).
      Rodgers additionally argues that he is indigent within the meaning of
§ 3014. He raised this argument at sentencing and, therefore, we review for
clear error the district court’s factual finding that Rodgers had the ability to
pay the mandatory statutory fine. See United States v. Magnuson, 307 F.3d
333, 335 (5th Cir. 2002). Although a defendant may rely on the presentence
report (PSR) to show an inability to pay, the PSR in the instant matter, adopted
by the district court, specifically indicated that Rodgers held title to certain
assets and had potential employability sufficient to pay the $5,000 fine. See
Magnuson, 307 F.3d at 335. The district court’s conclusion that Rodgers was




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    Case: 17-30491    Document: 00514344059     Page: 3   Date Filed: 02/09/2018


                                 No. 17-30491

non-indigent is plausible in light of this record. See United States v. Pacheco-
Alvarado, 782 F.3d 213, 221 (5th Cir. 2015).
      The decision of the district court is AFFIRMED.




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