                                                                         FILED
                                                             United States Court of Appeals
                                  PUBLISH                            Tenth Circuit

                UNITED STATES COURT OF APPEALS                      July 12, 2016

                                                                Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                        Clerk of Court
                       _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                   No. 15-2119

RACHEL BASURTO,

       Defendant - Appellant.
                      _________________________________

              Appeal from the United States District Court
                     for the District of New Mexico
                    (D.C. No. 1:13-CR-00969-JB-1)
                      _________________________________

John V. Butcher, Assistant Federal Public Defender, Office of the Federal
Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez,
United States Attorney, Office of the United States Attorney, Albuquerque,
New Mexico, with him on the brief), for Plaintiff-Appellee.
                       _________________________________

Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     Ms. Rachel Basurto was convicted on federal drug charges. In light

of the conviction, the district court had to decide whether to impose a fine

and, if the court did so, to set the amount. Ms. Basurto’s only source of
income was her monthly disability payments, but she and her husband

owned a house unencumbered by a mortgage. Relying on Ms. Basurto’s co-

ownership of the house, the district court imposed a fine of $13,133.33,

reasoning that Ms. Basurto could pay this amount by selling the house or

obtaining a loan. 1 Ms. Basurto appeals the fine, arguing that it is

procedurally unreasonable. We affirm.

I.    Ms. Basurto asserts four challenges to the fine.

      On appeal, Ms. Basurto brings four challenges to the fine 2:

      1.    In finding that Ms. Basurto is able to pay the fine, the district
            court erroneously relied on Ms. Basurto’s ability to sell or
            mortgage her house.

      2.    In assessing Ms. Basurto’s ability to pay, the district court did
            not account for the hardship to Ms. Basurto.


1
      To calculate the fine, the district court

           valued the house at its tax-assessment value, $33,689,

           subtracted a 6% realtor fee,

           halved this figure to account for the husband’s interest in the
            house, and

           subtracted Ms. Basurto’s existing liabilities ($2,500) and court-
            imposed special assessments ($200).

Based on these calculations, the district court imposed a $13,133.33 fine.
2
      On appeal, Ms. Basurto refers to the Eighth Amendment’s Excessive
Fines Clause. See Appellant’s Opening Br. at 43-45, 48, 50. We do not
interpret these references as a separate appeal point.

                                       2
      3.    The district court clearly erred by relying on facts that (a) the
            family members living with Ms. Basurto had known about and
            could have prevented her crimes and (b) the house had been
            used to facilitate the crimes.

      4.    The district court did not account for the increased risk of
            recidivism posed by the fine.

We reject each challenge.

II.   We consider whether the district court abused its discretion.

      We review the reasonableness of the district court’s decision to

impose a fine under the abuse-of-discretion standard. United States v.

Lopez-Macias, 661 F.3d 485, 488-89 (10th Cir. 2011). “Reasonableness has

both procedural and substantive components.” United States v. Cage, 451

F.3d 585, 591 (10th Cir. 2006).

      Ms. Basurto characterizes her challenges to the fine as procedural.

This characterization is correct because Ms. Basurto challenges the method

that the district court used in calculating the fine. See id.

      In assessing her procedural challenge, we can disturb the district

court’s factual findings only if they are clearly erroneous. United States v.

Trujillo, 136 F.3d 1388, 1398 (10th Cir. 1998). But the district court’s

legal conclusions are subject to de novo review. United States v. Ray, 704

F.3d 1307, 1315 (10th Cir. 2013).




                                       3
III.   The district court found that Ms. Basurto had not proven an
       inability to pay the fine.

       The U.S. Sentencing Guidelines authorize district courts to impose

fines except when defendants establish that they are unable to pay and

unlikely to obtain that ability. U.S.S.G. § 5E1.2(a) (2014). 3 Applying this

authority, the district court found that Ms. Basurto could raise the money

for the fine by selling her house or obtaining a loan with the house as

collateral.

       According to Ms. Basurto, the district court’s findings are clearly

erroneous. According to Ms. Basurto, she cannot sell the house because

state law prohibits a sale unless Ms. Basurto’s husband consents. See N.M.

Stat. Ann. § 40-3-13(A) (voiding the sale of real property that spouses own

as community property without both spouses’ consent). Ms. Basurto

contends that (1) she does not know where her husband is and (2) even if

he could be located, he would probably not consent to a sale. 4

       Ms. Basurto acknowledges that state law provides a statutory

procedure permitting a sale without spousal consent if a spouse has



3
      Section 5E1.2(a) states that the district court “shall” impose a fine
unless the defendant establishes an inability to pay, but the U.S. Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005) rendered
the Guidelines advisory.
4
      Ms. Basurto believes that Mr. Basurto currently resides in Mexico,
but she has not had any contact with him since 2003, when he went to
Mexico.

                                       4
disappeared. See N.M. Stat. Ann. § 40-3-16. But Ms. Basurto contends that

she does not know how to carry out the statutory procedure on her own,

cannot afford to hire an attorney to assist in carrying out the statutory

procedure, and cannot meet all of the statutory requirements. Ms. Basurto

also argues that no one would loan her money because of legal uncertainty

over the ability to sell the house and Ms. Basurto’s lack of income. We

reject these contentions because the district court could have reasonably

concluded from the sparse evidence that Ms. Basurto could (1) satisfy the

statutory procedure for a sale without her husband’s participation or, in the

alternative, (2) obtain her husband’s consent to a sale.

      First, New Mexico law provides a statutory procedure allowing the

sale of jointly owned property “[i]f a spouse disappears and his location is

unknown to the other spouse.” N.M. Stat. Ann. § 40-3-16(A). Though Ms.

Basurto argues that she lacks the legal knowledge required to comply with

the statutory procedure, the district court could reasonably conclude that

legal knowledge was unnecessary. The New Mexico law allows Ms.

Basurto to sell jointly owned property upon completion of five tasks:

      1.    File a petition stating why the transaction would be desirable
            for Ms. Basurto.

      2.    Obtain court appointment of a guardian ad litem for the absent
            husband and pay this guardian a “reasonable fee.”

      3.    Serve a notice of hearing on the guardian ad litem.



                                      5
     4.    Publish four weekly notices of hearing in a newspaper of
           general circulation in the county where the petition is pending.

     5.    Obtain a court order authorizing the transaction based on a
           finding that the husband disappeared.

N.M. Stat. Ann. § 40-3-16.

     The district court did not abuse its discretion by considering Ms.

Basurto capable of performing these five tasks. Though Ms. Basurto cannot

afford an attorney, the statutory procedure is relatively straightforward and

Ms. Basurto did not present any evidence of an inability to carry out the

statutory procedure.

     Ms. Basurto also argues that she cannot comply with the statutory

procedure because she (1) would not be able to prove that her husband’s

location is “unknown to anyone” and (2) cannot afford the non-attorney

costs associated with the procedure, such as publishing notices in a local

newspaper. Appellant’s Opening Br. at 28. These arguments are

unconvincing. The statutory procedure requires only that a spouse’s

location is “unknown to the other spouse [Ms. Basurto]”; the statute does

not require Ms. Basurto to prove that her husband’s location is unknown to

anyone. N.M. Stat. Ann. § 40-3-16(A). And Ms. Basurto presented no

evidence showing that she cannot afford the costs associated with the

statutory procedure. Thus, the district court could reasonably infer that Ms.

Basurto would be able to use the statutory procedure to sell the house

without her husband’s consent.

                                      6
     Second, Ms. Basurto could sell the home if she obtained her

husband’s consent. Ms. Basurto contends that securing her husband’s

consent would be difficult given the husband’s unknown location. But the

record does not show that Ms. Basurto ever attempted to contact her

husband, much less that she was unable to locate him or to obtain his

consent. In fact, Ms. Basurto’s appeal briefs suggest the opposite: Ms.

Basurto states that one of her daughters has been in contact with Mr.

Basurto, that Mr. Basurto has a son who “could possibly provide his

father’s location,” and that Ms. Basurto “will probably not be able to prove

Mr. Basurto has disappeared and his location is unknown to anyone.”

Appellant’s Opening Br. at 7, 28-29. Accordingly, Ms. Basurto has not met

her burden to prove an inability to obtain her husband’s consent to a sale.

     The district court also had discretion to rely on Ms. Basurto’s ability

to obtain a loan with the house as collateral. The district court could have

reasonably found that

     1.    Ms. Basurto could obtain a loan with the house as collateral
           and

     2.    the house’s value was enough to secure the principal on a loan
           for the amount of the fine.

     Ms. Basurto contends that she would be considered a high credit risk.

But Ms. Basurto did not present any evidence suggesting that lenders

would hesitate to loan money with the house as collateral.



                                      7
      Ms. Basurto relies on two categories of cases: (1) cases holding that

courts cannot impose fines when the defendant’s assets are unproven or

when the defendant’s future ability to pay is based merely on chance 5 and

(2) cases considering the need to appoint counsel when a criminal

defendant is indigent. 6

      The first line of cases is inapplicable because the district court did

not base the fine on an unproven asset or on speculation about possible

winnings. Rather, the district court based the fine on the house that Ms.

Basurto currently owns, which has a tax-assessment value of $33,689. And

Ms. Basurto did not present any evidence suggesting that she is unable to

sell her house or obtain a loan with the house as collateral.

      The second line of cases indicates that the court should inquire into

the actual availability of a defendant’s uncertain assets. These cases do not

5
       See, e.g., United States v. Wong, 40 F.3d 1347, 1383 (2d Cir. 1994)
(concluding that the district court erred by basing the defendant’s future
ability to pay on the possibility that the defendant might win the lottery);
United States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992) (remanding
for reconsideration of the defendant’s ability to pay a fine based on the
value of his house because his equity in the house was unknown); United
States v. Washington-Williams, 945 F.2d 325, 327 (10th Cir. 1991)
(concluding that the district court erred because the defendant had shown
that she no longer had any equity in the rental property relied upon by the
district court).
6
      See, e.g., United States v. Barcelon, 833 F.2d 894, 898 (10th Cir.
1987) (holding that in considering whether the defendant was entitled to
appointment of counsel, the court could rely on the potential repayment of
a $20,000 gambling debt, but only upon inquiry into the likelihood of
repayment).

                                       8
apply because Ms. Basurto does not question the value of her equity

interest in the house and the district court specifically addressed Ms.

Basurto’s ability to pay the fine based on her equity in the house. Though

Ms. Basurto questioned her ability to sell the house or to obtain a loan, she

did not present any evidence to this effect.

      Based on the evidence presented, the district court acted within its

discretion in imposing the $13,133.33 fine.

IV.   The district court did not err when analyzing the hardship that
      the fine imposed on Ms. Basurto.

      The district court reasoned that the hardship to Ms. Basurto and her

ability to pay are separate inquiries:

      Once the Court decided that–despite [Ms. Basurto’s] minimal
      assets, the third parties living in [Ms. Basurto’s] home, and the
      other factors–it should fine her, the burden shifted to [Ms.]
      Basurto to prove she could not afford to pay that fine. . . .
      While the difficulty a fine will cause is certainly relevant when
      she is arguing that the Court should not impose a fine, it is not
      relevant once the Court decides to impose a fine. At that stage,
      difficulty to the defendant is not the issue; the sole issue is
      whether [Ms. Basurto] can pay the fine.

R., vol. I at 254. Ms. Basurto challenges this reasoning, arguing that the

district court should have treated hardship as part of the ability-to-pay

analysis. 7 According to Ms. Basurto, hardship is a necessary component of

that analysis. We conclude that the district court did not err.


7
      In her reply brief, Ms. Basurto offers a different interpretation of the
district court’s language; she argues that this language suggests that
hardship is immaterial regarding the amount of the fine. But Ms. Basurto
                                         9
      In deciding whether to impose a fine and how much the fine should

be, the district court must consider the sentencing factors in 18 U.S.C.

§ 3572(a). 8 Section 3572(a) requires the district court to consider factors

including the defendant’s income, earning capacity, financial resources,

and the burden of the fine on the defendant. 18 U.S.C. § 3572(a)(1)-(2).

Similarly, the guidelines require the district court to consider the

defendant’s ability to pay and the burden on the defendant. U.S.S.G.

§ 5E1.2(a), (d)(2)-(3) (2014).

      Ms. Basurto contends that hardship could affect her ability to pay.

We disagree. The statutory provisions and the guidelines separately list the

defendant’s ability to pay and the hardship the fine would impose. Ms.

Basurto elsewhere recognizes this distinction, stating that “[t]he

[sentencing] factors that must be considered also include those specific to

fines: the defendant’s ability to pay, which is determined by the

defendant’s income, earning capacity, and financial resources, 18 U.S.C.

§ 3572(a)(1), U.S.S.G. § 5E1.2(d)(2); [and] the hardship the fine will

impose upon the defendant, her family and her financial resources,

did not raise this interpretation of the district court’s language until her
reply brief. As a result, we decline to consider this argument. See United
States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013) (declining to consider
an argument omitted in the appellant’s opening brief).
8
      The district court was also required to consider the sentencing factors
in 18 U.S.C. § 3553(a). But the district court’s consideration of the factors
in § 3553(a) is not at issue in this appeal.

                                      10
§ 3572(a)(2), § 5E1.2(d)(3) & (8) . . . .” Appellant’s Opening Br. at 44. As

Ms. Basurto implicitly admits in this passage, hardship and ability to pay

are distinct considerations.

      The district court recognized this distinction by explaining that

hardship does not affect Ms. Basurto’s ability to pay, for she either can pay

the fine or she can’t. As a result, the district court did not err when

treating ability to pay and hardship as separate inquiries.

V.    The district court did not rely on clearly erroneous facts in
      finding that (1) Ms. Basurto’s family had known about her drug
      activity and (2) Ms. Basurto’s house was connected to her drug
      activity.

      A district court errs procedurally when it imposes a fine based on

clearly erroneous facts. United States v. Lente, 647 F.3d 1021, 1030 (10th

Cir. 2011). Ms. Basurto argues that the district court clearly erred by

relying on two facts: (1) the family members living with Ms. Basurto had

known about the illegal drug activity and could have stopped it, and (2)

Ms. Basurto’s house had been connected to her illegal behavior. 9 In our

view, these factual findings were not clearly erroneous.




9
      Ms. Basurto also argues that the district court clearly erred by
relying on the possibility that Ms. Basurto would be able to sell or
mortgage her home. These arguments are addressed above in Part III.

                                      11
      The record includes three facts supporting the district court’s finding

that several of Ms. Basurto’s family members were aware of Ms. Basurto’s

drug activity. 10

      First, Ms. Basurto’s daughter knew the combination to a safe in the

house that contained methamphetamine, cash, a handgun, and a key to

another safe containing more cash. R., vol. II at 6-7. In fact, the daughter

            opened the safe for the police because Ms. Basurto had claimed
             that she did not know the combination and

            claimed that some of the cash from the safe was hers.

      Second, methamphetamine was found in the son-in-law’s car.

      Third, Ms. Basurto kept items consistent with drug dealing—a scale,

small plastic baggies, and a razor blade—in plain view in her bedroom.

      Based on these three facts, the district court could have reasonably

found that several of Ms. Basurto’s family members had known about the

drug activity and chose to continue residing with Ms. Basurto anyway.

      In addition, the district court could have reasonably found that Ms.

Basurto had used her house to “further [her] drug dealing enterprise[].” R.,

vol. I at 251. As noted, Ms. Basurto kept cash, drugs, and a handgun in her

house. Even if Ms. Basurto conducted drug transactions elsewhere, the


10
     Ms. Basurto’s one-year-old granddaughter also lived with Ms.
Basurto. Ms. Basurto argues that “of course . . . [the] granddaughter was
completely innocent.” Appellant’s Opening Br. at 47-48. The
granddaughter’s presence in the house does not affect our analysis.

                                      12
district court did not clearly err by finding that Ms. Basurto’s house had

played a role in the illegal activity.

      We conclude that the district court did not clearly err in finding that

(1) Ms. Basurto’s live-in family members had known of the drug crimes,

and (2) Ms. Basurto’s house had been connected to the drug crimes.

VI.   The district court did not abuse its discretion by failing to
      address the risk of recidivism caused by the fine.

      Ms. Basurto also argues that the district court failed to consider that

imposing a fine would increase her risk of recidivism. This argument

relates to the district court’s general discretion to weigh the sentencing

factors and impose a fine. See 18 U.S.C. § 3553(a)(2)(B)-(C). The

$13,133.33 fine fell within the guideline range. As a result, the court

needed only to provide a general statement of reasons for the fine. United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

      The district court entertained Ms. Basurto’s sentencing arguments,

holding two sentencing hearings, ordering and reviewing supplemental

briefing, providing a general statement of reasons for imposing the fine,

and stating that the relevant sentencing factors had been considered. Thus,

the court showed that it had considered the sentencing factors. See id. at

1200 (stating that we must respect Congress’s decision not to require

specificity for sentencing decisions within the guidelines); United States v.

Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir. 2007) (rejecting the


                                         13
defendant’s argument that “a district court must address each and every

argument for leniency that it rejects in arriving at a reasonable sentence”),

overruled on other grounds by United States v. Lopez-Macias, 661 F.3d

485 (10th Cir. 2011). In considering the sentencing factors, the district

court expressly considered the recidivism risk posed by the fine and

accounted for the possibility that a large fine might “nudge [Ms. Basurto]

into further profit-bearing criminal activity that she might not otherwise

commit.” Supp. R. at 23.

      The district court did not abuse its discretion by omitting discussion

of the risk of recidivism from imposition of the fine.

VII. Disposition

      We affirm.




                                     14
