                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    August 4, 2016

                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 15-2229
                                                          (D. N.M.)
 BRIAN J. JUANICO,                             (D.C. No. 1:14-CR-03095-JB-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.


      Brian Juanico pleaded guilty to three counts of assault of an intimate

partner by strangling or suffocation, in violation of 18 U.S.C. §§ 113(a)(8) and

1153. The charges arose out of a 2014 incident in which Juanico attacked the

mother of his three children. At sentencing, the district court imposed a prison

sentence of eighteen months, followed by three years of supervised release, and a

fine of $53,423.55. Juanico appeals only the fine. Exercising jurisdiction under

28 U.S.C. § 1291, we AFFIRM the district court’s imposition of the fine.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 I. Background

      The victim, a member of the Acoma Pueblo Tribe, reported to the Acoma

Tribal Police Department that Juanico had assaulted her on the reservation. She

stated that after she had returned from Denver to pick up Juanico and one of her

daughters at Juanico’s home on the reservation, Juanico had become upset with

her. She reported that Juanico had then choked her three times, making it

difficult to breathe each time. Juanico also threatened to hit her with a golf club

and shoot her with a gun.

      The tribal court issued a warrant for Juanico’s arrest, and Juanico turned

himself in. An agent of the Bureau of Indian Affairs Office of Justice Services

interviewed the victim about the incident, and then filed a complaint in federal

district court in New Mexico charging Juanico with assault by strangulation.

      Juanico pleaded guilty to all charges without a plea agreement. The

probation office calculated Juanico’s Sentencing Guidelines range to be thirty-

three to forty-one months. The office also collected financial information from

Juanico to determine his fine range. His most recent job, obtained while on

release before trial, paid a gross monthly income of $3986.67, resulting in about

$3000 a month in take-home pay. Juanico’s mobile home was worth about

$130,000 with a mortgage of $56,931. After adding in a 401(k), pickup trucks,

tools, and various personal loans and collections against him, Juanico’s total

liabilities were $95,453 and his net worth was $95,347. The fine range under the

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Sentencing Guidelines was thus $7500 to $75,000. The probation office

recommended, however, that the court not impose a fine in light of Juanico’s

financial situation and his multiple dependents.

      At sentencing, although Juanico argued for a sentence of time-served (104

days), the district court imposed a sentence of eighteen months, to be followed by

three years of supervised release. The court varied downward from the

Guidelines range because of several factors, including, among others, Juanico’s

family’s support, his employment, and his admission that he had made a terrible

mistake. In addition, the court stated that the imposition of a fine would

substitute for some prison time.

      Juanico’s counsel objected to the imposition of any fine, arguing that his

financial obligations would prevent him from being able to make any payments.

The court nonetheless stated it would impose a fine of $53,423.55 to cover the

costs of Juanico’s incarceration for eighteen months and supervised release for

three years. In response to counsel’s objections, the court proposed a payment

plan involving thirty-six monthly payments of $1484 to begin upon the end of

Juanico’s incarceration. Counsel again objected, claiming Juanico’s duty to pay

child support might make these payments impossible. The court overruled the

objections and imposed the sentence.




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                                   II. Analysis

      Juanico argues that the district court committed procedural error in

imposing the fine. Specifically, he argues that the court did not consider the

burden the fine would impose and its possible impact on his dependents.

      We review the imposition of sentences for reasonableness under an abuse

of discretion standard. See United States v. Perez-Jiminez, 654 F.3d 1136,

1144–45 (10th Cir. 2011). We review a factual finding that a defendant is able to

pay a fine for clear error. See United States v. Trujillo, 136 F.3d 1388, 1398

(10th Cir. 1998). We presume that a fine within the Guidelines range is

reasonable. See Perez-Jiminez, 654 F.3d at 1147.

      The Guidelines advise that a court should impose a fine unless a defendant

establishes that he is unable to pay. The defendant bears the burden of making

such a showing. See id. at 1145.

      When imposing a fine, the district court must consider several factors laid

out in both the U.S. Code and the Sentencing Guidelines. See 18 U.S.C.

§§ 3553(a), 3572(a); USSG § 5E1.2(d); see also Perez-Jiminez, 654 F.3d at 1145.

“Although the ‘district court is not required to make factual findings specific to

each factor . . .,’ we have indicated that ‘the record must reflect the court’s

consideration of the pertinent factors and the basis for the imposition of a fine.’”

Perez-Jiminez, 654 F.3d at 1145–46 (quoting United States v. Vigil, 644 F.3d

1114, 1124 (10th Cir. 2011)).

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      Having reviewed the district court’s thorough order, we find that it

adequately addressed the requisite factors, and that the presumption of

reasonableness accorded fines within the Guidelines range is not rebutted here.

First, Juanico does not argue that the fine falls outside the appropriate Guidelines

range. His primary contention is that the district court failed to properly analyze

the burden the fine would place on Juanico and his dependents. But the district

court explicitly laid out the factors it needed to consider, and stated that it was

imposing the fine “[a]fter considering the fourteen applicable factors.” R. at 118.

The court stated it was “acutely aware of Juanico’s family obligations,” but found

that a fine was the proper punishment in this instance. Id. at 119. The district

court also found that material possessions matter to Juanico, and the loss of them

would deter further criminal conduct. Finally, by allowing the fine to be paid in

installments over three years, the court somewhat lessened the hardship. Contrary

to Juanico’s argument, the district court did consider the burden the fine might

place on Juanico and his dependents.

      The court then found that Juanico had not proven by a preponderance of the

evidence that he will be unable to pay the fine. 1 Reviewing for clear error, we

      1
         Juanico argues that the district court erred by stating, “While the
difficulty a fine will cause is certainly relevant when [a defendant] 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 he can pay the fine.” Dist. Ct. Order 49. If considered by itself,
that sentence would be error. See 18 U.S.C. 3572(a) (requiring a court to
                                                                        (continued...)

                                          -5-
affirm this finding. The district court found that Juanico could sell his mobile

home, or take loans using his assets as collateral, although perhaps a difficult

option, the fact remains that he would be able to finance payments on the fine.

Having already considered the burden placed on Juanico by the fine, as well as

the other required factors, the district court did not clearly err in concluding

Juanico would be able to pay the fine after his release from incarceration.

      We also note that this case bears a striking similarity to a recently

published decision of this court that affirmed the imposition of a fine by the same

judge in the District of New Mexico under similar circumstances. See United

States v. Basurto, No. 15-2119, ___ F.3d ___ (10th Cir. 2016). In that case, the

district court found the defendant could afford to pay a fine by selling her house.

Despite the procedural hurdles and monetary burdens of doing so, we affirmed the

imposition of the fine. See id. at ___. We also affirmed the district court’s

decision to not consider hardship in its ability-to-pay analysis. Basurto supports

affirming the district court’s imposition of a fine in this case. Having said that,

although a district court need not go through every factor in explicit detail, a




      1
       (...continued)
consider the burden on the defendant when determining both whether to impose a
fine and the amount of the fine); USSG § 5E1.2(d), (e) (same). However, the
remainder of the district court’s careful and extensive order reveals that the court
did thoroughly consider the burden that a fine of this amount would impose on
Juanico and his dependents.

                                          -6-
more precise and holistic explanation of the § 3572(a)(2) factors lessens the risk

of appeal and facilitates our appellate review.

      Juanico’s final argument concerns the amount of the fine. Because he did

not challenge the amount in the district court, he concedes we review for plain

error. The familiar plain error test requires reversal if the district court commits

“(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).

Juanico argues that the district court failed to consider the possibility that he

would be released from prison earlier than eighteen months due to good-time

credits. In addition, he argues that the district court should have considered that

the Bureau of Prisons might decide to place him in a less costly community

corrections center for the final few months before his release. 2 Even assuming,

however, that the district court erred when it failed to consider these two

possibilities, we find such an error could not have been “plain,” as required for

reversal. Juanico points to no cases, and we find none, that require a district

court to make these types of considerations. And for good reason: Juanico,

contrary to his assertions on appeal, was not “entitled” to good time credit, nor

was he “virtually certain” to receive such credit. Aplt. Br. at 31. Without the

      2
          In his reply brief, Juanico notes that he was, in fact, released three
months early due to good-time credits. The district court could not have known
this at the time of sentencing, of course.

                                          -7-
benefit of foresight, neither the district court nor Juanico could have predicted

whether his behavior in prison would conform to the rules. The district court did

not plainly err when it imposed a fine based on the cost of Juanico’s

imprisonment.

                                 III. Conclusion

      We AFFIRM the district court’s imposition of the fine.

                                                     ENTERED FOR THE COURT


                                                     Timothy M. Tymkovich
                                                     Chief Judge




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