Opinion
Criminal Action No. 98-207 Section "N"
October 11, 2001
ORDER AND REASONS
Before the Court is the defendant, Trevor Williams', Motion to Correct or Reduce Sentence. For the following reasons, the Motion is DENIED.
A. BACKGROUND
Trevor Williams was sentenced before this Court on August 15, 2001. Williams was sentenced to two counts of a superceding bill of information. Williams was sentenced to 240 months as to Count 1 for solicitation to commit murder and 60 months as to Count 2 for using and carrying a firearm in relation to a drug trafficking crime. As part of the sentence, he was ordered to pay a fine of $20,000 which would include the cost of confinement pursuant to U.S.S.G. § 5E1.2(f). Payment of the fine was to begin while the defendant was incarcerated and any unpaid balance left upon release was to be paid at a rate of $200 per month.
B. ANALYSIS
Williams asserts in his Motion to Correct/Reduce his sentence that it was error for the Court to impose a fine. The factual findings adopted by the Court stated that the defendant has never been gainfully employed although he did engage in periodic side jobs. Williams further stated that he had no assets or liabilities. During the sentencing, Williams objected to the imposition of the fine given that he was indigent and would not be able to pay the fine upon his release. The Court noted that, while he may not currently have the ability to pay the fine, he would have the opportunity to earn the money that he owed to the government during his twenty-five year incarceration. Accordingly, the Court ordered Williams to begin paying the fine after his incarceration began.
Williams argues that it was error for the Court to impose a fine under Section 5E1.2 of the Sentencing Guidelines which states that "a court shall impose a fine in all cases, 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). However, Section 5E1.2(e) states that, "if the defendant establishes that . . . he is not able, and even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine required . . . the court may impose a lesser fine or waive the fine." The Supreme Court and the Fifth Circuit have held that a fine may still be imposed on one who cannot pay. United States v. Altamirano, 11 F.3d 52, 53 (5th Cir. 1993) citing Bearden v. Georgia, 461 U.S. 660, 669, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).
"Neither the Constitution nor any other federal law categorically prohibits the imposition of a fine where a defendant is found to be indigent." Altamirano, 11 F.3d at 53. Nevertheless, certain findings of fact must be made before a court may impose a fine in such a case. The Fifth Circuit has held that where a court adopts a PSR that shows a limited ability to pay and the defendant relies on that report, the government must demonstrate evidence that a defendant can pay, and the Court must make specific findings before a fine may be imposed. United States v. Fair, 979 F.2d 1037, 0141 (5th Cir. 1992).
Williams relies on the Second Circuit case of United States v. Aregbeyen, 251 F.3d 337 (2nd Cir. 2001). There the Court remanded the case to the district court for more specific factual findings regarding the ability of the defendant to pay a fine. The Court held that "a court may impose a fine on a defendant who is presently indigent `only if there is evidence in the record that he will have the earning capacity to pay the fine after release from prison.'" Id. at 339 citing United States v. Corace, 146 F.3d 51, 56 (2nd Cir. 1998). Here, the Court did not dispute that Williams did not have the present ability to pay a fine. The Court specifically said that Williams could pay the fine during his incarceration.
During sentencing, the Court, in response to the defendant's objections to imposition of the fine stated that the defendant would have time to pay back the fine during his twenty-five year incarceration. Accordingly, the Court ordered the payment of the fine to begin after incarceration commenced and any unpaid balance upon release would be paid at a rate of $200 per month. The PSR did not state that Williams did not have the future ability to pay, only that he currently had no assets and roughly $695 in liabilities. The PSR also indicated that Williams had never been gainfully employed but did engage in periodic side jobs with relatives. Williams has a tenth grade education, and he has indicated that he has drywall and carpentry skills. Williams will have ample time using the skills that he already possesses to pay the fine. In addition, the Court ordered Williams to obtain his GED while incarcerated which will improve his employment opportunities upon release from imprisonment to pay any unpaid balance. Based on the skills Williams currently possesses and the length of his incarceration, this Court imposed a fine at the low end of the guideline range. The factual findings contained in the PSR convinced the Court that Williams would be able to pay the fine while incarcerated.
Accordingly, the defendant's Motion to Continue or Reduce his sentence is DENIED.