Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^** 

Bruce Craig Bottrell appeals his jury conviction for unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), and his sentence under the United States Sentencing Guidelines. Bottrell was sentenced to 44 months imprisonment and 2 years supervised release, fined $1,415.56 per month for the cost of his imprisonment, and ordered to pay a special assessment of $50.00. He contends that insufficient evidence supported his conviction and that the district court erred by imposing the fine and failing to make a finding as to whether he was able to pay. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and vacate and remand in part.

* Sufficiency of the Evidence

Bottrell contends that insufficient evidence supported his identity as the bank robber. This contention lacks merit.

Because Bottrell did not move for judgment of acquittal below, we may review the sufficiency of the evidence only to prevent a manifest miscarriage of justice. United States v. Smith, 924 F.2d 889, 893-94 (9th Cir. 1991). We must consider the evidence in the light most favorable to the government and determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Id. at 894.

The following evidence supported Bottrell's identity as the robber. Eric Weber, a customer who followed the robber out of the bank, and Daniel Budorick, a friend who joined Weber in his pursuit of the robber, identified Bottrell. The police found near Bottrell a sweatshirt containing the exact amount of money taken from the bank, including ten "bait" bills with prerecorded serial numbers. Bottrell's fingerprints were found on a demand note. Additionally, Bottrell confessed to Special Agent Lane DeSilva of the Federal Bureau of Investigation and told him the note resembled the one he had used in the robbery.

Although bank teller Irma Dahbura was unable to identify Bottrell as the robber and was unable to identify the demand note as the note used in the robbery, it was for the jury to resolve the conflict between this arguably exculpatory evidence and the other identification testimony. See United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). Bottrell also argues that Weber's identification lacked weight because he did not see the robbery and because he lost sight of the robber during the chase. Nonetheless, Weber positively identified Bottrell as the person he followed out of the bank, and the jury could rationally give weight to his testimony. See id.

Bottrell argues that there was no evidence that he owned the sweatshirt, nor that the robber wore the other clothes found nearby. In fact, Bottrell told the police that he had put money and clothes in a tree. Bottrell also appears to argue that DeSilva's belief in his guilt colored his testimony about Bottrell's confession. This argument lacks merit because it was for the jury to determine DeSilva's credibility. See id.

Accordingly, based on the above evidence of his identity, Bottrell's conviction was not a manifest miscarriage of justice. See Smith, 824 F.2d at 893-94.

II

Fine

Bottrell contends, and the government concedes, that the district court erred by failing to make a finding as to whether he was able to pay the cost of his imprisonment. This contention has merit.

The Sentencing Guidelines provide for two types of fines, punitive fines and fines to pay the cost of imprisonment. U.S.S.G. Sec. 5E1.2(a), (f), and (i); United States v. Rafferty, 911 F.2d 227, 232 (9th Cir. 1990). The district court must impose both types of fines unless it finds that the defendant has established that he is unable to pay and unlikely to become able to pay. United States v. Inafuku, No. 90-10188, slip op. at 8627 (9th Cir. July 10, 1991); Rafferty, 911 F.2d at 232; United States v. Seminole, 882 F.2d 441, 443-44 (9th Cir. 1989). The record must show that the district court considered all required factors in evaluating the defendant's ability to pay a fine. United States v. Quan-Guerra, 929 F.2d 1425, 1427 (9th Cir. 1991); see also United States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (per curiam) (the district court should clearly resolve on the record all disputed matters, and specific findings of fact are encouraged).

Here, according to the presentence report, Bottrell did not prepare a financial report but stated during the presentence interview that his interest in residential and business property worth $2 million was being litigated in state court divorce proceedings. The presentence report recommended no fine because of Bottrell's destitution before his arrest. In a financial affidavit, prepared when defense council was appointed, Bottrell stated that the house was worth $400,000. He stated in a sentencing letter that he would resume his catering business after his release from prison. At the sentencing hearing, defense counsel stated that the business property belonged to Bottrell's wife and argued that Bottrell was unable to pay any fine.

The district court imposed a fine to pay the cost of imprisonment, but made no finding as to whether Bottrell was able to pay or likely to become able to pay. Accordingly, we vacate the sentence and remand for the district court to make a finding. See Quan-Guerra, 929 F.2d 1425, 1427; Rafferty, 911 F.2d at 232. We therefore do not reach Bottrell's contention that the district court erred by imposing the fine.

AFFIRMED in part and VACATED and REMANDED in part.