15-953-cr
United States v. McAllister
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of March, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                              v.                                              No. 15-953-cr

ROY MCALLISTER, II,
                                   Defendant-Appellant,

JEFFREY DONNA, JESSE SOULE,
                                 Defendants.
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APPEARING FOR APPELLANT:                          PETER F. LANGROCK, Langrock Sperry &
                                                  Wool, LLP, Middlebury, Vermont.

APPEARING FOR APPELLEE:                          HEATHER E. ROSS, Assistant United States
                                                 Attorney (Gregory L. Waples, Assistant United
                                                 States Attorney, on the brief), for Eric S. Miller,
                                                 United States Attorney for the District of
                                                 Vermont, Burlington, Vermont.

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       Appeal from a judgment of the United States District Court for the District of

Vermont (Christina Reiss, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 19, 2015, is AFFIRMED.

       Defendant Roy McAllister, II, stands convicted on his guilty plea to conspiracy to

distribute at least 50 kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

846, and after a jury trial on two counts of tax fraud, see 26 U.S.C. § 7206(1). Sentenced

to a total of 30 months’ imprisonment, a $25,000 fine, and a $300 special assessment,

McAllister challenges only the fine, arguing that the district court failed to make sufficient

findings as to his ability to pay in light of the Presentence Report’s (“PSR”)

recommendation to the contrary. We assume the parties’ familiarity with the facts and

record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

       At the outset, we reject McAllister’s contention that his failure to object to the fine

at sentencing is immaterial to his doing so for the first time on appeal. In such a

circumstance, we will review the challenged fine only for plain error. See United States v.

Pfaff, 619 F.3d 172, 174 (2d Cir. 2010); see also United States v. Marcus, 560 U.S. 258,

262 (2010) (stating that plain error requires showing of (1) error, (2) that is clear or

obvious, (3) affecting substantial rights, and (4) calling into question fairness, integrity, or




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public reputation of judicial proceedings). McAllister’s argument fails at the first step of

analysis, as we identify no error in the district court’s decision to impose a $25,000 fine.

       The Sentencing Guidelines, which properly inform (without binding) a district

court’s sentencing determination, state that the district 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.” U.S.S.G. § 5E1.2(a). McAllister maintains that he made

that showing through (1) his Net Worth and Monthly Cash Flow Statements to the

Probation Department, which led to the PSR recommendation against a fine, and (2) the

fact that he had appointed counsel. “Although a presentence report’s view that defendant

has no funds to pay a fine is entitled to weight, and the fact that a defendant is represented

by or has been found eligible for appointed counsel certainly strongly suggest an inability

to pay a fine, neither is conclusive.” United States v. Fields, 113 F.3d 313, 325−26 (2d

Cir. 1997) (internal citation omitted).

       In imposing a $25,000 fine here, the district court observed that (1) McAllister’s

financial information, as reported to the Probation Department, lacked supporting

documentation; (2) his crimes, involving the sale of 3,000 pounds of marijuana over a

four-year period, were about “greed and profit”; and (3) trial evidence showed that

McAllister had concealed significant income and assets. See Sentencing Tr. at 34.

These circumstances permitted the court to conclude that the PSR did not accurately reflect

McAllister’s financial situation and, by extension, to reject its indigency conclusion. See



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United States v. Marquez, 941 F.2d 60, 66 (2d Cir. 1991) (recognizing that district court is

“surely not required to accept uncritically a [financial] representation” made to Probation

Department); see also United States v. Fields, 113 F.3d at 325 (explaining that while

imposition of fine may not be based upon suspicion that defendant has sufficient funds to

pay, “circumstantial evidence may be considered to decide what defendant earns or is

capable of earning and what his financial resources are,” and “[e]vidence of lucrative

illegal activity may support an inference that such funds, although hidden, remain at the

defendant’s disposal”).

       Further, the record shows McAllister’s future earning ability upon completion of his

30-month sentence. See United States v. Rivera, 971 F.2d 876, 895 (2d Cir. 1992)

(recognizing that fine can be imposed on indigent defendant where there is “evidence in the

record that he will have the earning capacity to pay the fine after release from prison”). At

the same time the PSR itemized McAllister’s various liabilities, it also reported that

McAllister, who will be 41 years old upon release from prison, holds a GED, has the

education and experience necessary to take the electrician licensing test or to work for a

licensed electrician (earning as much as $4,000 per month), and has also worked for his

brother’s fuel business, for which he is registered as the Vice President. See PSR

¶¶ 94−96; United States v. Thompson, 227 F.3d 43, 45 (2d Cir. 2000) (holding that district

court did not err in concluding that defendant with GED and history of employment could

satisfy fine balance through post-release earnings); United States v. Sellers, 42 F.3d 116,



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120 (2d Cir. 1994) (affirming imposition of $7,800 fine because district court “may have

inferred from [defendant’s] proffered employment history and educational background

that he had the capacity to earn sufficient future income to pay the fine” on scheduled

installments). In sum, the record here admits more than speculation that McAllister will

have a future earning capacity sufficient to cover the fine. Cf. United States v. Wong, 40

F.3d 1347, 1383 (2d Cir. 1994) (holding that district court cannot impose fine on indigent

defendant when future ability to pay is based merely on chance, such as winning lottery).

Thus, the district court’s imposition of the within-Guidelines fine was not error.

       Insofar as McAllister further protests the sufficiency of the district court’s findings

or its explanation of reasons for imposing a within-Guidelines fine, see PSR ¶ 114, this

court has held that a district court need not articulate such findings as long as the record

indicates, as it does here, that the court “‘consider[ed],’ among other things, the

defendant’s ability to pay.” United States v. Sellers, 42 F.3d at 120 (quoting 18 U.S.C.

§ 3572(a)); accord United States v. Glick, 142 F.3d 520, 529 (2d Cir. 1998). Further,

when imposing a within-Guidelines fine, the district court has “no obligation” under 18

U.S.C. § 3553(c) to “justify the magnitude of the fine.” United States v. Marquez, 941

F.2d at 65. Accordingly, we will not disturb the district court’s decision to impose the

$25,000 fine as a financial consequence for McAllister’s crimes.




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      We have considered McAllister’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.


                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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