                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                Nov. 18, 2009
                               No. 08-10458                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                    D. C. Docket No. 06-00026-CR-BAE-6

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KRYSTAL COLLINS,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                              (November 18, 2009)

Before DUBINA, Chief Judge, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Krystal Collins appeals the district court’s imposition of a $3,000
fine as part of her sentence for conspiracy to possess with the intent to distribute,

and to distribute, 50 grams of cocaine base (“crack cocaine”) and 5 kilograms of

cocaine hydrochloride (“powder cocaine”), in violation of 21 U.S.C. § 846. On

appeal, Collins argues that the district court plainly erred by finding that she had

the ability to pay a fine and by imposing the $3,000 fine without articulating its

consideration of the factors under U.S.S.G. § 5E1.2(d) (2007).

      When a defendant does not object to a fine, as in the present case, we will

only reverse for plain error. United States v. Hernandez, 160 F.3d 661, 665 (11th

Cir. 1998). Accordingly, Collins must establish that (1) an error occurred, (2) the

error was plain, and (3) it affected her substantial rights. United States v. Beckles,

565 F.3d 832, 842 (11th Cir.), cert. denied, ___ S. Ct. ___ (U.S. Oct. 5, 2009) (No.

09-5482). If these three conditions are satisfied, we may notice a forfeited error,

but only if (4) such error seriously affected “the fairness, integrity, or public

reputation of the judicial proceedings.” Id. (internal quotation marks omitted).

      Pursuant to the Sentencing Guidelines, a district court is required to impose

a fine unless the defendant satisfies her burden of establishing that she is unable to

pay a fine. U.S.S.G. § 5E1.2(a); Hernandez, 160 F.3d at 665. If the defendant is

unable to pay a fine within the guideline range, “the district court may impose a

fine below the applicable range, or no fine at all.” United States v. Rowland, 906



                                            2
F.2d 621, 623 (11th Cir. 1990). The court must consider the following factors in

determining such an amount:

      (1) the need for the combined sentence to reflect the seriousness of the
      offense (including the harm or loss to the victim and the gain to the
      defendant), to promote respect for the law, to provide just punishment
      and to afford adequate deterrence;

      (2) any evidence presented as to the defendant’s ability to pay the fine
      (including the ability to pay over a period of time) in light of his
      earning capacity and financial resources;

      (3) the burden that the fine places on the defendant and his dependents
      relative to alternative punishments;

      (4) any restitution or reparation that the defendant has made or is
      obligated to make;

      (5) any collateral consequences of conviction, including civil
      obligations arising from the defendant’s conduct;

      (6) whether the defendant previously has been fined for a similar
      offense;

      (7) the expected costs to the government of any term of probation, or
      term of imprisonment and term of supervised release imposed; and

      (8) any other pertinent equitable considerations.

U.S.S.G. § 5E1.2(d).

      The district court is not required to make specific findings regarding the

factors as long as the record reflects that it considered them in imposing a fine.

Hernandez, 160 F.3d at 665-66. Where the defendant does not object to the fine,



                                           3
the court has “no notice of the need to make further findings.” Id. at 666. If the

record does not provide any guidance as to the court’s reasons for imposing a fine,

however, we must remand for it to make the necessary factual findings. Id.

      In Hernandez, the presentence investigation report (“PSI”) stated that the

defendant did not have the ability to pay a fine within the guideline range, but the

district court imposed a fine of $3,000 on each of 3 counts, totaling $15,000. Id. at

665. We held that, while the record did not indicate what § 5E1.2(d) factors the

district court relied on, it did not plainly err by imposing the fine because (1) the

defendant owned a $500,000 home and a $500,000 yacht prior to filing for

bankruptcy, (2) the PSI indicated that he was waiting for the bankruptcy

proceedings to conclude to accept the remaining payments from the sale of a

fast-food franchise, and (3) he did not willingly answer the probation officer’s

questions about his financial dealings, from which it could be inferred that he had

concealed assets. Id. at 666.

      In another case, we held that the district court’s imposition of a $2,000 fine

payable at a rate of less than $56 per month was not clear error where the district

court considered the defendant’s “current financial situation and future prospects,”

including his pre-prison income of $17,000, and departed downward from the

guideline range of $10,000 to $100,000. United States v. Long, 122 F.3d 1360,



                                            4
1366 n.9, 1367 (11th Cir. 1997); see also United States v. McGuinness, 451 F.3d

1302, 1308 (11th Cir. 2006) (holding that the district court did not clearly err by

imposing a low-end guideline range fine of $4,000 where the defendant failed to

establish present and future inability to pay and admitted to possessing hidden

assets).

       By contrast, in Rowland, where the defendant had only $8,000 in assets,

earned between $100 and $125 per week, had child support obligations, and was

appointed counsel due to indigency, we vacated and remanded the district court’s

order imposing a $50,000 fine based solely on the $35,000 found on the

defendant’s person—and seized by police as drug proceeds—at the time of his

arrest because there was “no other evidence that [he] [would be] able to pay a fine

of this magnitude, either immediately or in the future.” Rowland, 906 F.2d at

623-24; and see United States v. Paskett, 950 F.2d 705, 709 (11th Cir. 1992)

(vacating and remanding a $100,000 fine based solely on the $1 million found in

the defendant’s bedroom during a search for evidence of money laundering, where

the record contained insufficient evidence of her ability to pay a fine of that

magnitude).

       First, the record here demonstrates that the district court implicitly

considered the § 5E1.2(d) factors, including the burden a fine would cause, before



                                            5
imposing a fine of $3,000, which fell substantially below the guideline range of

$10,000 to $1,000,000. Second, evidence in the record concerning Collins’s

education and finances, including her lengthy earnings history, suggests that she

had the ability to pay such an amount over time. Accordingly, we conclude that

the district court did not commit plain error, and we affirm Collins’s sentence.

      AFFIRMED.




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