Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1990)

MEMORANDUM^** 

Rayel L. Shoulders appeals from the sentence imposed following his plea of guilty to theft of personal property while on a military reservation in violation of 18 U.S.C. § 661. Shoulders claims the district court erred in imposing a $12,494.00 fine upon him pursuant to section 5E1.2 (formerly section 5E4.2) of the Sentencing Guidelines. We affirm.

DISCUSSION

On August 11, 1989, the district court sentenced Shoulders to nine months incarceration, one year of supervised release, a fine of $12,494, and restitution, owed jointly and severally with his codefendants, in the amount of $610.98. Payable in installments, the $12,494 fine includes a $500 punitive fine, the minimum allowable under the guidelines,¹  plus $11,994 for the costs of Shoulders' imprisonment and supervised release. We review this fine which is within the statutory limits for abuse of discretion. See United States v. Cloud, 872 F.2d 846, 855 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989).

The guidelines provide that the district court shall impose a fine which includes the costs of incarceration and supervised release in all cases except where the defendant establishes that he is not able to pay the fine required by the guidelines even with a reasonable installment schedule, or where the fine would unduly burden the defendant's dependents. Sentencing Guidelines, Secs. 5E1.2(a), (f), (i). If the defendant establishes such hardship, the court in its discretion "may impose a lesser fine or waive the fine [,]" or impose alternative sanctions in lieu of the fine. Id. Sec. 5E1.2(f). We note that " [a]lthough the court is obligated to consider the defendant's financial status and possible alternative sanctions, the Guidelines impose no obligation to tailor the fine to the defendant's ability to pay." United States v. Doyan, No. 89-3294, slip op. at 5 (10th Cir. July 24, 1990).

Shoulders failed to establish that he was presently unable, and not likely to become able in the future, to pay a fine. The district court noted that Shoulders "did not come forward during the writing of the presentence report to produce financial information." In fact, Shoulders refused to be interviewed by the probation officer charged with preparing the presentence report. Conversely, evidence was presented at sentencing that Shoulders' had been employed prior to his arrest and that his old job awaited him following his release from prison.²  Thus, there was evidence that Shoulders would have the earning capacity to pay a fine after his release from prison. Cf. United States v. Seminole, 882 F.2d 441, 443 (9th Cir. 1989) (record did not establish whether the defendant had earning capacity to pay attorneys fees).

The district court's finding that imposition of a fine would not unduly burden Shoulders' dependents because there was no evidence that Shoulders was contributing to their support is also supported by the record. Shoulders presented evidence that he had two children, one by a former marriage, and another borne by his fiancé after his arrest. Born three-months premature, over $78,000 in medical expenses have been incurred in the birth of the second child. Shoulders' fiancé testified that Medicaid covered these expenses. While we acknowledge that a fine would impair Shoulders' ability to lend them financial support, there is no evidence Shoulders pays child support to his first child or alimony to his former wife, or that he is in fact supporting his fiancé and second child. Thus, while given the opportunity, Shoulders failed to prove that the imposition of a fine upon him would unduly burden his dependents, who were not accustomed to receiving his financial support.

In sum, we find that the district court did not abuse its discretion in imposing a $12,494 fine on Shoulders. Absent proof of hardship, the fine represented the minimum allowable under the guidelines.

AFFIRMED.