USA v. Martha Gonzales

Filing

PUBLISHED OPINION FILED. [09-20555 Remanded ] Judge: CES , Judge: ECP , Judge: JWE Mandate pull date is 10/07/2010 for Appellant Martha Denise Gonzales [09-20555]

USA v. Martha Gonzales

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Case: 09-20555

Document: 00511235174

Page: 1

Date Filed: 09/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 16, 2010 N o . 09-20555 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in it if f - A p p e lle e , v. M A R T H A DENISE GONZALES, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court for the Southern District of Texas, Houston Division

B e fo r e STEWART, PRADO, and ELROD, Circuit Judges. P E R CURIAM: A t issue is whether the district court plainly erred by ordering Martha D e n is e Gonzales, upon revocation of her probation, to immediately pay the b a la n c e of a previously imposed fine. Based on the record before us, it is unclear w h eth er the district court considered Gonzales's "financial resources,"as required b y 18 U.S.C. § 3572(a)(1) & (2), in ordering the immediate payment of that fine. Therefore, we REMAND. In September 2006, Gonzales pleaded guilty, pursuant to a written plea a g r e e m e n t, to one count of aiding and abetting health care fraud in violation of 1 8 U.S.C. § 1347. In May 2007, the district court sentenced her to five years of

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Case: 09-20555

Document: 00511235174

Page: 2

Date Filed: 09/16/2010

No. 09-20555 p r o b a t io n , with a condition of six months of non-prison confinement, a $5,000 f in e , and a $100 special assessment. The district court ordered Gonzales to im m e d ia t e ly pay the $100 special assessment and to make monthly payments o f $100 on the fine, over a period of 50 months, to commence 60 days after the ju d g m e n t. In July 2009, the Probation Office filed a petition to revoke Gonzales's p r o b a t io n based on five violations of her conditions of probation. During the r e v o c a t io n hearing, Gonzales pleaded guilty to the violations, which were two fo r g e r ie s of financial instruments, theft of property, failure to report to her p r o b a t io n officer, and failure to report her change of address and employment. At the hearing, the district court revoked Gonzales's probation, and s e n t e n c e d her to twenty-one months of imprisonment in the custody of the F e d e r a l Bureau of Prisons. The district court also noted that there was a $4,000 b a la n c e due on her fine and directed the Government "to take judgment, im m e d ia t e judgment, if you haven't already against Miss Gonzales for that 4 ,0 0 0 -d o lla r judgment." The district court did not impose a new term of

s u p e r v is e d release. In the written judgment, the district court ordered Gonzales t o immediately pay a lump sum of $4,000. Gonzales timely appealed. On appeal, Gonzales asserts that the district court plainly erred by o r d e r in g her to immediately pay the $4,000, without considering her financial c ir c u m s t a n c e s . This court reviews the district court's order for plain error b e c a u s e Gonzalez did not object before the district court. See United States v. B r a n tle y , 537 F.3d 347, 349 (5th Cir. 2008). In order to find plain error, an a p p e lla te court must find (1) an "error or defect--some sort of `[d]eviation from a legal rule'" that is (2) plain (clear or obvious, rather than subject to reasonable d is p u t e , which (3) "affected the appellant's substantial rights." Puckett v. United S ta te s , 129 S.Ct. 1423, 1429 (2009) (internal citation omitted). The decision to r e v e r s e under plain-error review is discretionary, and this court will not correct 2

Case: 09-20555

Document: 00511235174

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Date Filed: 09/16/2010

No. 09-20555 t h e error unless it "seriously affect[s] the fairness, integrity, or public reputation o f judicial proceedings." See United States v. Olano, 507 U.S. 725, 736 (1993). District courts are required to consider a defendant's financial resources w h e n determining a schedule for paying a fine. See 18 U.S.C. § 3572; United S ta te s v. Walker, 74 F.3d 1236, 1995 WL 783357, at *2 (5th Cir. Nov. 28, 1995) (u n p u b lis h e d ) (remanding case to the district court to consider defendant's fin a n c ia l resources in determining schedule of payment for a fine);1 see also U n ite d States v. Myers, 198 F.3d 160, 168-69 (5th Cir. 1999) (holding that, under 1 8 U.S.C. § 3664, which governs the issuance and enforcement of restitution o r d e r s , the district court plainly erred by ordering an immediate lump-sum p a y m e n t where the defendant had no assets). Section 3572, titled "Imposition o f a sentence of fine and related matters," states in relevant part: (a ) Factors to be considered. --In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a)-(1) the defendant's income, earning capacity, and financial resou rces; (2) the burden that the fine will impose upon the defendant, a n y person who is financially dependent on the defendant, or a n y other person (including a government) that would be r e s p o n s ib le for the welfare of any person financially d e p e n d e n t on the defendant, relative to the burden that a lt e r n a tiv e punishments would impose. S e c t io n 3572(d), titled "Time, method of payment, and related items," also p r o v id e s that a "person sentenced to pay a fine or other monetary penalty, in c lu d in g restitution, shall make such payment immediately, unless, in the in t e r e s t of justice, the court provides for payment on a date certain or in

Because the court issued this unpublished opinion prior to January 1, 1996, it is precedential. See 5TH CIR. R. 47.5.3 (providing that unpublished opinions before January 1, 1996 are precedent).

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Document: 00511235174

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Date Filed: 09/16/2010

No. 09-20555 in s t a llm e n t s ." 18 U.S.C. § 3572(d). Therefore, under the plain language of S e c tio n 3572, when determining the schedule for payment of a fine, a court must c o n s id e r a defendant's financial resources, and if it is "in the interest of justice," t h e court may allow payment in installments. Even when a court is addressing a revocation situation, the statutory r e q u ir e m e n t remains the same. See 18 U.S.C. § 3572. We do not decide whether t h e district court plainly erred here, because the record is unclear as to whether t h e district court, upon revoking probation, considered Gonzales's financial c ir c u m s t a n c e s in ordering the immediate payment of a previously imposed fine.2 A c c o r d in g ly , we REMAND so that the district court can clarify whether it had c o n s id e r e d Gonzales's financial resources, as required by 18 U.S.C. § 3572, b e fo r e ordering the immediate payment of the fine.

Although the colloquy during the probation-revocation hearing does not show that the district court considered Gonzales's financial resources, we note that the district court had previously sentenced Gonzales, and that the schedule of payments form in the revocation judgment states that the district court "assessed the defendant's ability to pay."

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