                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           January 7, 2004
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-50768
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ALFREDO MARTINEZ,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                     USDC No. EP-03-CR-74-ALL-PRM
                          --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Alfredo Martinez was sentenced to a total of 24 months

imprisonment and three years supervised release following his

guilty-plea conviction for importation and possession of

marijuana.     See 21 U.S.C. §§ 841, 952, 960.   Martinez appeals

only the district court’s imposition of a $300 fine.        At

sentencing, Martinez objected to the fine in light of the

probation officer’s finding that he lacked the ability to pay any


     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-50768
                                -2-

court imposed fine.   The Government has filed an unopposed motion

to waive the briefing requirement, vacate the judgment as to the

fine, and affirm the judgment as modified.

     Where, as in this case, the district court adopts a

presentence report (PSR) showing 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 before one can be imposed.

See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992).

The Government admits that no such evidence was adduced, and

the district court did not make specific findings regarding

Martinez’s ability to pay a fine.   Consequently, this court

cannot uphold the district court’s imposition of the fine.

See United States v. Hodges, 110 F.3d 250, 251 (5th Cir. 1997).

     The Government’s motion to waive the briefing requirement is

GRANTED.   Given our determination that the fine cannot be upheld,

we hereby GRANT the Government’s motion to VACATE the $300 fine

imposed on Martinez and MODIFY the district court’s judgment

accordingly.   As modified herein, the judgment of the district

court is AFFIRMED.

     VACATED and MODIFIED in part; and as modified, AFFIRMED.
