                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           FEB 13 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                         No. 02-5126
v.                                                   D.C. No. 02-CR-50-P
                                                       (N.D. Oklahoma)
KENNETH RAY ARMSTRONG,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In a three-count indictment filed on March 7, 2002, appellant Kenneth Ray

Armstrong was charged with possession of an unregistered firearm in violation of

26 U.S.C. §§ 5861(d) and 5871; possession of a firearm while being an unlawful

user of a controlled substance in violation of 18 U.S.C. §§ 922(g)(3) and

924(a)(6); and possession of stolen explosive material in violation of 18 U.S.C.

§§ 842(h) and 844(a). Armstrong pleaded guilty to all three counts and a

presentence investigation report (“PSR”) was prepared prior to sentencing.

Armstrong raised no objections to the PSR and the district court sentenced him to

a fifty-seven month term of incarceration. In addition, the district court imposed

a $5500 fine pursuant to § 5E1.2(c)(3) of the Sentencing Guidelines and a $300

special assessment pursuant to 18 U.S.C. § 3013. Armstrong then filed a timely

notice of appeal.

       The only issue Armstrong raises on appeal is a challenge to the imposition

of the $5500 fine. Because Armstrong failed to object to the imposition of the

fine at sentencing, this court reviews the district court’s determination only for

plain error. See United States v. Ballard , 16 F.3d 1110, 1114 (10th Cir. 1994).

“Under the plain error standard, we will not review the district court’s factual

findings relating to sentencing, but will review for particularly egregious or

obvious and substantial legal error, which our failure to consider would result in

a miscarriage of justice.”   Id. (quotations omitted).


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       Section 5E1.2(a) of the Sentencing Guidelines requires the district court to

impose a fine on an individual defendant “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). Accordingly, it was Armstrong’s burden at sentencing to

establish both a present and future inability to pay.    See id. Armstrong argues

that the district court committed plain error because the facts before the court at

sentencing demonstrated that he has no assets or income and, thus, he has no

present ability to pay the fine. He further argues that the facts indicated that he

has no future ability to pay because he is facing lengthy federal and state prison

sentences.

       When calculating the amount of a fine, the district court must consider the

factors set forth in § 5E1.2(d) of the Sentencing Guidelines.    See U.S.S.G. §

5E1.2(d). The district court, however, is not required to make specific findings

on the record. See United States v. Nez,     945 F.2d 341, 343 (10th Cir. 1991).

Rather, the record must simply reflect that the court considered the factors before

imposing the fine.   See id.

       Here, the record clearly demonstrates that the district court considered the

relevant factors, including Armstrong’s ability to pay. Before imposing the fine,

the court specifically stated that it accepted the facts set forth in the PSR for

sentencing purposes. The PSR contained information indicating that Armstrong


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is thirty-six years old and in good health with no history of mental or emotional

problems. He attended vocational school and was trained to use machine tools.

His employment history included various blue-collar jobs. The PSR further

indicated that Armstrong may be able to pay a reduced fine during his term of

incarceration if he is employed through the Bureau of Prisons’ Inmate Financial

Responsibility Program. The court then stated, “The Court finds that the

defendant does have the ability to pay a reduced fine, one below the low end of

the applicable fine range.”   See U.S.S.G. § 5E1.2, cmt. n.3 (permitting the

sentencing court to impose a fine below the applicable fine guideline range).

       Armstrong argues that the district court committed plain error because the

record also demonstrated that, at the time of sentencing, he had no assets, had not

been employed in more than one year, and faced the possibility of a lengthy state

term of incarceration after his release from federal prison. A defendant’s

indigence at the time of sentencing, however, does not preclude a court from

imposing a fine.   See United States v. Klein , 93 F.3d 698, 706 (10th Cir. 1996).

Further, even if this court assumes that Armstrong adequately established a

present inability to pay a fine, nothing in the record indicates that he established

a future inability to pay. The only evidence before the district court supporting

Armstrong’s argument, is counsel’s statement to the court at the sentencing

hearing that state charges were pending against Armstrong and that he faced the


                                          -4-
possibility of additional state incarceration. It was not plain error for the district

court to reject Armstrong’s speculative assertion that he will likely be convicted

and incarcerated on the pending state charges, thereby rendering him incapable of

seeking employment after his release.

      The district court did not commit plain error when it imposed the $5500

fine. Accordingly, Armstrong’s sentence is      affirmed .

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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