     Case: 17-41269      Document: 00514648275         Page: 1    Date Filed: 09/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 17-41269                               FILED
                                  Summary Calendar                     September 19, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RENE COLON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-466-6


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Rene Colon pleaded guilty to one count of wire fraud in violation of
18 U.S.C. §§ 1343 and 2. The district court sentenced Colon to 12 months and
one day of imprisonment followed by two years of supervised release. It also
imposed a $25,000 fine and ordered restitution of $50,000. Colon argues on
appeal that the district court reversibly erred in imposing a $25,000 fine given




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-41269     Document: 00514648275      Page: 2    Date Filed: 09/19/2018


                                  No. 17-41269

the purported determination in his presentence report (PSR) that his ability to
pay a fine was limited.
      Colon did not argue before the district court, as he now does on appeal,
that the fine imposed is improper because it is greater than the PSR’s
purported fine recommendation, nor did he lodge a specific objection to the
$25,000 amount of the fine.       Because the district court did not have the
opportunity to address the “gravamen” of Colon’s argument on appeal, review
is for plain error. See United States v. Garcia-Perez, 779 F.3d 278, 282 (5th
Cir. 2015); see also United States v. McElwee, 646 F.3d 328, 338 (5th Cir. 2011).
      Relying primarily on United States v. Fair, 979 F.2d 1037 (5th Cir. 1992),
Colon argues that the district court improperly disregarded the PSR’s
recommendation on a fine. In Fair, the district court imposed a $20,000 fine
even though the PSR indicated that the defendant did not have the ability to
pay a fine and recommended against imposing a fine. Id. at 1040. This court
vacated the fine relying on prior caselaw holding that it is “error for the district
court to adopt the PSR, and then depart from its recommendation on fines and
cost of incarceration, absent any reasons for such a departure.” Id. at 1041-42.
      Here, unlike Fair, the PSR affirmatively determined that Colon had the
ability to pay some level of a fine. Though the PSR suggested that a fine
“possibly lower” than the applicable guidelines range would be appropriate,
this is far from an affirmative recommendation of a fine below the guidelines
range as Colon argues. The $25,000 fine is also within the guidelines range of
$10,000 to $95,000 and is therefore presumptively reasonable. See United
States v. Pacheco-Alvarado, 782 F.3d 213, 221 (5th Cir. 2015). The district
court did not plainly err in imposing a fine in Colon’s case. See Puckett v.
United States, 556 U.S. 129, 135 (2009).
      The judgment of the district court is AFFIRMED.



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