              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                            No. 93-2016



UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,

                               versus

MICHAEL RAY ALTAMIRANO,
                                          Defendant-Appellant.




          Appeal from the United States District Court
               for the Southern District of Texas


                      ( December 20, 1993 )

Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     The district court imposed a probated fine.    It also adopted

a presentence report suggesting that the defendant had no present

or future ability to pay a fine.   The defendant contends that the

district court lacked authority to probate a fine and in any event

should not have done so because he had no present or anticipated

ability to pay.    We conclude that inability to pay is not an

absolute barrier to a fine.    We also conclude that the district

court had no authority to probate the fine.   We vacate the probated

fine and remand for resentencing to give the district court the

chance to reconsider the propriety or amount of the fine.
                                      I.

     Michael Altamirano pleaded guilty to a drug offense.                         The

district court sentenced him to 60 months in prison, 5 years of

supervised    release,   a   $50   special        assessment,     and    a   $50,000

probated fine. The PSR stated that Altamirano resided in jail, had

no job or assets, had an eighth grade education, and had performed

menial tasks at various restaurants.              It made no recommendation on

imposing a fine.

                                     II.

     There are some general starting points.                 A sentencing court

cannot constitutionally enhance the jail sentence of an indigent

person beyond the statutory maximum because he cannot afford to pay

a fine.      Williams v. Illinois, 399 U.S. 235, 242-43 (1970).

Similarly, a state cannot convert a fine imposed under a fine-only

statute into a jail term solely because the defendant cannot pay.

Tate v. Short, 401 U.S. 395, 399 (1971).                More recently, the Court

expanded this principle in Bearden v. Georgia, 103 S.Ct. 2064

(1983).      The Court held that a district court cannot revoke

probation    for   failure   to    pay       a   fine    unless   it    finds    that

probationer willfully refused to pay, that probationer did not make

sufficient bona fide efforts legally to acquire adequate financial

resources, or that another sanction would not serve the state's

interests in punishment and deterrence.                 Id. at 2073.

     The    Sentencing   Guidelines          express    similar   sensitivity      to

indigency, requiring a fine unless the defendant establishes that

he cannot pay and is not likely to become able to pay.                       U.S.S.G.


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§ 5E1.2(a) (Nov. 1992).       After determining that a defendant can

pay, a court may consider the factors in U.S.S.G. § 5E1.2(d) (Nov.

1992) to determine the fine's place within the guideline range.

Under U.S.S.G. § 5E1.2(d) (Nov. 1992), a court again must consider

the defendant's ability to pay in light of his earning capacity and

financial resources.      U.S.S.G. § 5E1.2(d)(2) (Nov. 1992).

       Neither the Constitution, nor applicable sentencing statutes

and guidelines, however, categorically prohibit a court from ever

imposing a fine after the defendant has proven his inability to

pay.     United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir.

1993).    The Court recognized this fact in Williams:     "[N]othing we

now hold precludes a judge from imposing on an indigent, as on any

defendant, the maximum penalty prescribed by law."            399 U.S. at

243.    The Court echoed this sentiment in Bearden:      "A defendant's

poverty in no way immunizes him from punishment."             103 S.Ct. at

2071.     Under   this   arrangement,   sentencing   courts    consider   a

defendant's ability to pay only after the government unsuccessfully

has attempted to collect the fine.        Voda, 994 F.2d at 154 n.13

(quoting United States v. Merritt, 639 F.2d 254, 257 (5th Cir.

1981)).

       Similarly, isolated guidelines require sentencing courts to

consider indigency in calculating a fine, but the guidelines, taken

as a whole, do not prohibit sentencing courts from imposing fines

on defendants who cannot pay.      U.S.S.G. §§ 5E1.2(a), 5E1.2(d)(2),

5E1.2(f) (Nov. 1992).     To be sure, U.S.S.G. § 5E1.2(a) (Nov. 1992)

states that "[t]he court shall impose a fine in all cases, except


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where the defendant establishes that he is unable to pay and is not

likely to be able to pay a fine," but this provision must be read

in   light   of   the   fact   that   indigency   alone   has   never   barred

imposition of a fine and U.S.S.G. § 5E1.2(f) (Nov. 1992), which

gives a sentencing court the discretion to lessen or waive a fine

imposed on an indigent defendant.

      Much of the confusion about the power of a sentencing court to

fine a defendant who cannot pay rests with the contrasting language

in U.S.S.G. § 5E1.2(a) and U.S.S.G. § 5E1.2(f).             Taken together,

U.S.S.G. § 5E1.2(a) and U.S.S.G. § 5E1.2(f) suggest that a court

may fine a defendant who cannot pay, though it generally should not

impose such a sanction.

      The first guidelines did not include the language in U.S.S.G.

§ 5E1.2(a) (Nov. 1992) stating that a court shall impose a fine in

all cases except where the defendant establishes that he cannot and

will not be able to pay.       Instead, that provision stated only that

"[e]xcept as provided in subsection (f) below, the court shall

impose a fine in all cases."           U.S.S.G. § 5E1.2(a) (Nov. 1989).

Subsection (f) stated that "[i]f the defendant establishes that (1)

he is not able and, even with the use of a reasonable installment

schedule, is not likely to become able to pay all or part of the

fine required by the preceding provisions, or (2) imposition of a

fine would unduly burden the defendant's dependents, the court may

impose a lesser fine or waive the fine."              U.S.S.G. § 5E1.2(f)

(emphasis added).




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     The explicit prohibition against fining indigent defendants in

U.S.S.G. § 5E1.2(a) (Nov. 1992) first appeared in the November 1990

guidelines,   but,    curiously,        U.S.S.G.     §   5E1.2(f)   retained       its

discretionary      language.       In    fact,   a   new   application      note    in

November    1990    stated    that      "[t]he    determination     of     the   fine

guideline   range    may     be   dispensed      with    entirely   upon    a    court

determination of present and future inability to pay any fine."

U.S.S.G. § 5E1.2, comment 3 (Nov. 1990) (emphasis added).                          The

application notes for the November 1992 guidelines retain the same

discretionary language.           Though the explicit prohibition against

imposing fines on indigents in U.S.S.G. § 5E1.2(a) has remained in

the guidelines since November 1990, U.S.S.G. § 5E1.2(f) and the

application notes give a sentencing court the discretion to impose

a fine on an indigent defendant.

     Our jurisprudence fits within this framework, as United States

v. Fair, 979 F.2d 1037 (5th Cir. 1992) does not mandate a different

result.    In Fair, we recognized that a defendant may rely on a PSR

to establish his inability to pay a fine.                     Id. at 1041.          We

suggested that if a court adopts the findings of a PSR showing that

the defendant has no or limited ability to pay, then the government

must demonstrate that he has assets or earning potential before the

court can impose a fine.          Id.    By its focus on proof of indigency

Fair implies its importance, but not its necessity. Fair, 979 F.2d

at 1041-42.   United States v. Walker, 900 F.2d 1201, 1206-07 & n.6

(8th Cir. 1990), relied on in Fair, discusses the elements that a




                                          5
sentencing court may consider.    Voda reaffirmed the point, citing

Fair.   Voda, 994 F.2d at 154 n.13.

     The PSR suggested that Altamirano had no present or future

ability to pay, but made no recommendation regarding a fine.      The

court adopted the PSR's findings, and the government did not

counter that Altamirano has assets or earning potential.       In this

situation, the court could still impose a fine, albeit informed by

the fact that the defendant could not and was not likely to be able

to pay.   The question remains whether the court had the authority

to probate the fine.   We conclude that the district court lacked

the power to probate a fine, as we will explain.          We do not

therefore examine the limits upon the trial court's discretion to

fine a defendant who cannot pay and who has no prospects of being

able to do so.

                                 III.

     The statutory authority for a probated sentence derives from

18 U.S.C. § 3561(a), which permits probation unless (1) the offense

is a Class A or B felony and the defendant is an individual; (2)

the offense is an offense for which probation has been expressly

precluded; or (3) the defendant is sentenced at the same time to a

term of imprisonment for the same or a different offense.          18

U.S.C. § 3561(a).   All three exceptions forbid probation in this

case.     Altamirano   was   convicted   of   violating   21   U.S.C.

§ 841(b)(1)(B), a Class B felony under 18 U.S.C. § 3559(a)(2).

Congress expressly eliminated probation for violations of 18 U.S.C.




                                  6
§ 841(b)(1)(B).   Finally, Altamirano received a 60-month prison

term for the same offense.

     The Sentencing Guidelines also prohibit a probated fine in

this case.   U.S.S.G. § 5B1.1(b) (Nov. 1992) tracks the three

exceptions in 18 U.S.C. §    3561(a), in that it forbids probation

for a Class B felony, when the offense of conviction precludes the

imposition of a probated sentence, or when the defendant receives

a prison term for the same offense.   U.S.S.G. § 5B1.1 (Nov. 1992).

Again, these exceptions preclude the assignment of a probated

sentence in this case.   The district court therefore improperly

probated the fine.

     VACATED IN PART and REMANDED.




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