                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         January 22, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-50610
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ARTURO CONTRERAS, JR.,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      (EP-03-CR-114-ALL-PRM)
                       --------------------

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Arturo Contreras, Jr. was sentenced to

concurrent 45-month terms of imprisonment and to a three-year term

of supervised release following his convictions for importing a

controlled substance containing a detectable amount of marijuana

and for possessing with the intent to distribute a controlled

substance containing a detectable amount of marijuana.           See 21

U.S.C. §§ 841(a)(1), §§ 952(a), 960(a)(1).         Over Contreras’s

objection, the district court also imposed a $300 fine.


     *
        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this opinion should not be published and is not precedent except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.
     The sole issue raised by Contreras on appeal is whether the

district court erred in imposing a fine.              The government concedes

that the district court erred in imposing a fine and has submitted

a motion requesting that the fine be vacated, that the judgment

be modified accordingly, and that the judgment, as modified, be

affirmed.      For    the   reasons     set   forth    below,   we   grant     the

government’s motion.

     When, as in this case, the district court adopts a presentence

report (PSR) that shows 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.          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 Contreras’s ability to pay a fine.                  Consequently, we

cannot affirm 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 stand, and in

view of the government’s request that we vacate and modify the

sentence rather than reversing it and remanding the issue of the

fine to the district court, we vacate the portion of Contreras’s

sentence that imposes a $300 fine, and we modify the district

court’s judgment accordingly.           As thus modified, we affirm the

sentence imposed by the district court.

     MOTION    GRANTED;     FINE   VACATED;    SENTENCE      MODIFIED   and,   as

modified, AFFIRMED.

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