                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JANUARY 8, 2007
                               No. 06-11940                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                   D. C. Docket No. 05-00007-CR-WCO-2

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                    versus

STEVE WADE LAMBERT,

                                                    Defendant-Appellant.


                         ________________________

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

                               (January 8, 2007)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Steve Wade Lambert appeals the $1,000 fine imposed as part of his total
sentence for illegally possessing a firearm, in violation of 18 U.S.C. § 922(g). We

AFFIRM.

                                     I. BACKGROUND

      Lambert pled guilty to one count of possession of a firearm after previously

having been convicted of a felony, in violation of § 922(g).1 When the police

searched Lambert’s house, following an altercation between Lambert and a

neighbor, they located 10 guns and 1,099 rounds of ammunition.

      With a total offense level of 15, and a criminal history category of I, the

probation officer calculated an advisory Sentencing Guidelines range of 18 to 24

months of imprisonment and a fine range of $4,000 to $40,000. His Presentence

Investigation Report (“PSI”) shows that (1) Lambert was completely disabled as a

result of an accident in 1985, and (2) the Social Security Administration showed no

FICA earnings for him for the years 1993 to 1997 and 1999 to 2006. In 1998,

Lambert’s earnings totaled $1,864.38. Lambert (1) filed for bankruptcy in 1998,

(2) had no outstanding debts, and (3) had two assets, his truck and the land on

which he lived, which together were worth $40,000. Lambert provided

information showing that his monthly income from Social Security disability

benefits and food stamps was $1,279, but he had a negative monthly cash flow of


      1
          Lambert was represented by a federal defender, both in the district court and on appeal.


                                                2
$111. The probation officer concluded that it was unlikely that Lambert could pay

a fine within the Guidelines range, but that he possibly could make payments

through the Bureau of Prisons’ Inmate Financial Responsibility Program (“BOP

Program”). The probation officer recommended a sentence of 21 months of

imprisonment and a fine of $1,000.

      At sentencing, the district judge adopted the PSI, and Lambert's counsel

requested a sentence below the advisory Guidelines range because of Lambert's

physical disability. The judge sentenced Lambert to 24 months of imprisonment

and imposed a $1,000 fine, noting that “[t]he defendant may make payments from

any wages he may earn, if able to do so, in prison.” R5 at 14. Lambert’s counsel

objected to the fine based on Lambert's inability to pay a fine and to DNA testing

being a condition of his supervised release. Although the objection to the fine was

not explicitly addressed, the judge apparently overruled it when it overruled

Lambert’s objection to the DNA testing as a condition of his supervised release.

Id. at 15-16.

                                  II. DISCUSSION

      On appeal, Lambert argues that the district judge abused his discretion when

he imposed a $1,000 fine because Lambert did not have the ability to pay it. He

asserts that (1) he has been disabled since 1985, (2) since that time, his sole source



                                           3
of income, with one exception, has been Social Security benefits, (3) his only

assets are his truck and his home, (4) after expenses, he has a monthly deficit of

$111, and (5) he is represented by a federal defender. Accordingly, he contends

that he does not have the present ability to pay the fine. Because of his disability,

he argues that he will be unable to pay the fine, even under a payment schedule,

because he will be unable to perform manual labor in prison to contribute to the

fine.

        He also asserts that the fine will impose a burden on his family, because

their sole means of support are his Social Security benefits, which will be

suspended while he is imprisoned. Citing United States v. Rowland, 906 F.2d 621

(11th Cir. 1990), he argues that, under these facts, it was an abuse of discretion for

the judge to have imposed a fine. Finally, he contends (1) that the district judge

erred when he failed to consider the U.S.S.G. § 5E1.2 (Nov. 2005) factors in

imposing his fine, and (2) that there was no factual support for the imposition of

the fine.

        We review a district court’s imposition of a fine for clear error. United

States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006) (per curiam). “'The

court shall impose a fine in all cases, except where the defendant establishes that he

is unable to pay and is not likely to become able to pay any fine [] even with the



                                            4
use of a reasonable installment schedule.' [The] [d]efendant has the burden of

proving inability to pay.” Id. (quoting U.S.S.G. §§ 5E1.2(a), (e)(1)).

      “When a fine is found to be appropriate, the sentencing court must ‘refer to

the table setting amounts of fines for different offense levels, then consider seven

listed factors, including any pertinent equitable concerns, in deciding the amount of

the fine to impose within the range.’” United States v. Paskett, 950 F.2d 705, 709

(11th Cir. 1992) (citation omitted). The Application Notes to § 5E1.2 state that

“the fact that a defendant is represented by (or was determined eligible for)

assigned counsel [is a] significant indicator[ ] of present inability to pay any fine.

In conjunction with other factors, [it] may also indicate that the defendant is not

likely to become able to pay any fine.” U.S.S.G. § 5E1.2 cmt. n.3. In Paskett, we

vacated a $100,000 fine and concluded that the record was insufficient to allow

review when the district judge failed to discuss explicitly the § 5E1.2 factors.

Paskett, 950 F.2d at 709.

      Because this case presents a close question, the district judge did not clearly

err in imposing the $1,000 fine. First, Lambert did not raise any objections to the

fine, or any arguments concerning his inability to pay it, until after the judge

imposed his fine. R5 at 2-15. He stated only that he did not have the ability to pay

the fine. Id. at 15. Although there was information regarding his financial status



                                            5
in his PSI, Lambert did not bring this information to the court’s attention.

Lambert’s general objection, unsupported by any proffered facts or evidence, was

insufficient to meet his burden to prove his inability to pay the fine. McGuinness,

451 F.3d at 1307.

      Second, although it appears that the district judge implicitly overruled

Lambert’s objection to the fine, he did not discuss the fine at all, even after

Lambert objected to it. Id. at 15. We have held that, when a district judge fails to

discuss explicitly the § 5E1.2 factors, we are required to remand for resentencing.

See Paskett, 950 F.2d at 709. At sentencing, the district judge noted that Lambert's

fine could be paid in accordance with the BOP Program, if he were able to work in

prison, which indicates that the judge had considered Lambert’s disability when he

imposed the fine. R5 at 14.

      Third, there are conflicting facts in the record concerning Lambert’s ability

to pay the fine. The undisputed facts contained in the PSI show that (1) Lambert

has been disabled since 1985, (2) his family’s sole means of support are the Social

Security benefits that he and his son collect, (3) his sole assets, collectively worth

$40,000, are his truck and the land on which he lives, and (4) he incurs a monthly

deficit of $111. The record also shows that he has at least one other asset, namely,

the guns that led to his crime in this case. Lambert possessed 10 firearms and over



                                           6
1,000 rounds of ammunition.

      Lambert cites Rowland for the proposition that the district judge abused his

discretion because the evidence does not support the fine imposed. In Rowland,

the convicted defendant had been arrested when he tried to make a large marijuana

purchase from undercover law enforcement agents. Rowland, 906 F.2d at 622. At

the time when he was arrested, he had $35,000 in cash, which the government later

seized, and his PSI indicated that he earned only $100 to $125 a week, had $8,000

in assets, and had child support obligations. Id. at 622, 624. Reasoning that the

defendant had $35,000 when he was arrested, and, therefore, had undisclosed

assets that could be used to pay the fine, the district judge imposed a $50,000 fine.

Id. at 623. We vacated the fine and held that it was not reasonably supported by

probative evidence, because there was no evidence that Rowland owned the

$35,000. Id. at 624. Rowland, however, is distinguishable from this case. First,

Lambert received a $1,000 fine, not a $50,000 fine, which he is more likely to be

able to pay, even with his limited financial resources. Second, Lambert apparently

did have undisclosed assets, namely, the firearms.

      Because Lambert presented no facts to the sentencing judge showing that he

was unable to pay the fine, and there is some evidence that he had assets that could

be used to pay it, Lambert failed to meet his burden of proving that he could not



                                           7
pay the fine. McGuinness, 451 F.3d at 1307. Accordingly, the district judge did

not clearly err in imposing the fine.

                                 III. CONCLUSION

      Lambert has appealed the $1,000-fine portion of his sentence following his

plea to § 922(g), possession of a firearm after previously having been convicted of

a felony. Because he did not prove that he was unable to pay the fine and there

was some evidence in the record that he had assets that could be used to pay it, the

district judge did not clearly err in imposing his fine. Therefore, the imposition of

Lambert's $1,000 fine is AFFIRMED.




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