United States of America, Plaintiff-appellee, v. Mary E. Friesen, Defendant-appellant, 961 F.2d 221 (10th Cir. 1992)

Before BALDOCK, BARRETT, Circuit Judges, and DAUGHERTY, District Judge^* 

ORDER AND JUDGEMENT^** 

DAUGHERTY, Senior District Judge, Sitting by designation.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

The Appellant has appealed from a Judgment and Commitment Order filed on May 23, 1990, following the sentencing of Appellant after a plea of guilty to four counts of possession of cocaine with the intent to distribute and one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841. The Appellant received a sentence of incarceration of 120 months and a term of supervised release of five years. She was ordered to pay costs of incarceration and supervision in a total amount not to exceed $150,706. No punitive fines were ordered.

The sole issue on appeal is whether the district court erred in imposing a fine for costs of incarceration and supervised release. Because this question involves the legal interpretation of the Federal Sentencing Guidelines, it is subject to de novo review by this Court. United States v. Doyan, 909 F.2d 413 (10th Cir. 1990).

It is the Appellant's position that this Court's recent opinion in United States v. Labat, 915 F.2d 603 (10th Cir. 1990), which holds that an "additional fine under § 5E1.2(i) cannot be imposed unless the Court first imposes a punitive fine under § 5E1.2(a)," is controlling in this case. It is undisputed that a punitive fine was not imposed and thus Appellant urges that the additional fine for costs of incarceration and supervised release is also improper. In response, the Government has agreed that Labat is controlling precedent and thus the fine should be vacated.

Accordingly, the district court's order imposing a fine in the amount of $150,706 for costs of incarceration and supervised release was inconsistent with the Sentencing Guidelines and should be and hereby is vacated.