from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00372-MSK-1)
Sanderford, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
Farley, Assistant United States Attorney (Robert C. Troyer,
Acting United States Attorney, with him on the brief),
Denver, Colorado, for Plaintiff-Appellee.
HARTZ, SEYMOUR, and PHILLIPS, Circuit Judges.
Magdiel Sanchez-Urias pleaded guilty in the United States
District Court for the District of Colorado to illegally
reentering the country after being deported. See 8
U.S.C. § 1326(a). The court imposed a sentence that
included a $1, 000 fine. Defendant appeals, arguing that he
cannot afford the fine. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm. Defendant bore the burden to
show that he lacked the assets to pay the fine. But he
refused to provide financial information at his presentence
interview, and the district court did not clearly err in
finding on the record before it that Defendant had not
established his inability to pay.
presentence investigation report (PSR), prepared on April 4,
2017, states that "[u]pon advice of counsel, [Defendant]
did not provide financial information at the time of the
presentence interview." R., Vol. 2 at 36. But the record
contains other evidence of his financial status. Perhaps most
helpful to him is the statement in the PSR that Laura
Trevino-who had been in a "serious relationship"
with Defendant for about a year-said that Defendant
"ha[d] no assets or debts." Id. at 34, 36.
Even if truthful, however, this statement was based on dated
information: at sentencing in early May, defense counsel
advised that the relationship had ended "some
months" earlier. R., Vol. 3 at 42. More importantly, the
record contains other evidence that Defendant had some
financial wherewithal. The PSR reports that before his arrest
he had been sending about $150 a week to his family and $100
a month to the mother of his child in Mexico. And the
financial affidavit he submitted in December 2016 to obtain
appointed counsel states that he was earning $3, 000 a month,
paid monthly rent of $900, and had more than $300 in a bank
district court sentenced Defendant to time served and one
year of supervised release, and imposed a mandatory $100
assessment and a $1, 000 fine. Defendant objected to the
fine, but the court overruled the objection.
review a sentencing court's decision to impose a fine for
"reasonableness under a deferential abuse-of-discretion
standard." United States v. Sharp, 749 F.3d
1267, 1291 (10th Cir. 2014). When a district court makes
findings regarding a defendant's ability to pay a fine,
we will reject those findings only if they are clearly
erroneous. See United States v. Perez-Jiminez, 654
F.3d 1136, 1145 (10th Cir. 2011). "A factual finding is
clearly erroneous if it lacks evidentiary support or if a
review of the evidence leaves us with the definite and firm
conviction that a mistake has been made." United
States v. Mirabal, 876 F.3d 1029, 1032 (10th Cir. 2017)
(internal quotation marks omitted).
argues that "the district court clearly erred in finding
that [Defendant] had the ability to pay a $1, 000 fine."
Aplt. Br. at 5 (capitalization omitted). But that misstates
the burden of persuasion on the issue of ability to pay.
Under USSG § 5E1.2(a), a sentencing 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."  As the defendant
establishes language suggests, it is a defendant's
burden to show that he falls within the exception. See
Perez-Jiminez, 654 F.3d at 1145. In other words, the
district court need not find that the defendant had the
ability to pay; rather, it need find only that the defendant
had not established his inability to pay. To be sure, the
district court said, "I infer from these facts that
[Defendant] has the ability to pay a fine." R., Vol. 3
at 50. But such imprecision is not uncommon in oral
pronouncements. The court made clear that it understood what
the proper inquiry was when it began its observations on the
matter by stating, "[Defendant] here has offered me
nothing to show that he cannot pay a fine." Id.
Thus, our review is limited to determining whether the court
clearly erred in finding that Defendant had not met his
burden to show inability to pay.
no clear error. Defendant is correct that defendants can
"'rely and stand upon . . . facts
contained in the PSR'" to show inability to pay.
Aplt. Br. at 9 (quoting United States v. Labat, 915
F.2d 603, 604, 606 (10th Cir. 1990) (overturning fine of
$110, 823.95 imposed on defendant who was unemployed, whose
family was receiving public assistance, and who rented home
from sister)). But, as other circuits have recognized, the
absence of evidence-particularly a defendant's failure to
provide financial information to the probation office-can
make it hard for a defendant to carry the burden of
persuasion on the issue of financial ability. In United
States v. Tocco, 135 F.3d 116, 133 (2d Cir. 1998), the
court held that it was reasonable for the district court to
infer that the defendant "possessed considerably more
assets than he admitted, " because of his "failure
to file tax returns over the past 10 years and his refusal to
disclose financial information during pre-sentencing
proceedings." It said that it could not "allow a
defendant's lack of disclosure at the sentencing phase of
the criminal proceedings against him to work to his advantage
on an appeal from that sentence." Id; see United
States v. Hairston, 46 F.3d 361, 376-77 (4th Cir. 1995)
("defendant cannot meet his burden of proof by simply
frustrating the court's ability to assess his financial
condition"); United States v. Martinez, 151
F.3d 384, 396 (5th Cir. 1998) (although the government must
produce evidence of ability to pay if the district court has
adopted a PSR showing a limited ability to pay, the defendant
failed to meet his burden of showing inability "because
he did not provide complete financial information to the
Probation Department"); United States v.
Soyland, 3 F.3d 1312, 1315 (9th Cir. 1993) (defendant
"failed to carry the burden of showing an inability to
pay the fine" when she "refused to provide
financial information to the probation
there was adequate evidence to indicate that Defendant could
have accumulated enough assets before his arrest to now pay a
modest $1, 000 fine. As the district court observed,
Defendant was driving a car when he was arrested and, even
accounting for his making some monthly payments to support a
child, the difference between income and expenses suggested
that Defendant had assets "that he has declined to
disclose." R., Vol. 3 at 50. We disagree with Defendant
that "evidence in the record establishe[d] inability to
pay." Aplt. Reply Br. at 2. We are not saying that the
district court was compelled to impose a fine, only that the
record did not prohibit imposition of the fine.
district court did not commit clear error. We
AFFIRM the ...