                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-51151
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID LEE JARMAN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 7:05-CR-63-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     David Lee Jarman pleaded guilty to a two-count indictment

charging him with being a convicted felon in possession of a

firearm (Count One) and possession a firearm with an obliterated

serial number (Count Two).   The district court sentenced Jarman

to 120 months of imprisonment on Count One and 60 months of

imprisonment on Count Two, to be served consecutively.      Jarman

was also sentenced to concurrent three-year terms of supervised




     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-51151
                                 -2-

release.    Despite Jarman’s request “that no fine be imposed,” the

district court imposed a $50,000 fine.

     The sole issue raised by Jarman on appeal is that the

district court erred in imposing a fine.    The Government agrees

that the district court erred in imposing a fine.    The Government

requests that we vacate the fine, modify the judgment, and

otherwise affirm Jarman’s sentence.

     Where, as in this case, the district court adopts a

presentence report (PSR) showing limited or no ability to pay a

fine, the Government must come forward with evidence showing that

a defendant can, in fact, pay a fine before one can be imposed.

See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992).

No such evidence was adduced in this case, and the district court

did not make specific findings regarding Jarman’s ability to pay

a fine.    Consequently, this court cannot uphold the district

court’s imposition of the fine.    See United States v. Hodges, 110

F.3d 250, 251 (5th Cir. 1997).

     Given our determination that the fine cannot be upheld, and

in view of the Government’s request that we modify the judgment

rather than remand the issue of the fine to the district court,

we hereby VACATE the $50,000 fine imposed on Jarman and MODIFY

the district court’s judgment accordingly.    As modified herein,

the judgment of the district court is AFFIRMED.
