United States of America, Plaintiff-appellee, v. Rudolph Carl Magnuson, Defendant-appellant, 307 F.3d 333 (5th Cir. 2002)

Rudolph Carl Magnuson pled guilty to one count of wire fraud, pursuant to a written agreement. Magnuson argues that the district court erroneously imposed a two-level sentencing enhancement for using "mass-marketing" in the commission of his offense and clearly erred in assessing a $20,000 fine. We affirm.

Magnuson operated an advance fee scheme, placing ads in grocery store tabloid newspapers promising interest-free loans. After collecting "application fees" and "deposits" from unwitting victims, Magnuson kept the money for his own use and did not extend a loan to any applicants.

He objects to the district court's imposition of a two-level enhancement under former U.S.S.G. § 2F1.1(b) (3) for using "mass-marketing" in the commission of his offense.¹  The sentencing guidelines define mass-marketing as a "plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of persons to (A) purchase goods or services; ... or (C) invest for financial profit."²  Magnuson argues that he did not engage in mass-marketing because placing a newspaper advertisement is passive, unlike solicitation by telephone, mail, or the Internet.

As a preliminary matter, we note that the definition of "mass-marketing" is not limited to the listed mediums—it explicitly contemplates "other means" of mass-marketing.³  Moreover, Magnuson does not dispute that his advertisements reached a "large number of persons." The average circulation of one tabloid newspaper in which Magnuson advertised is 335,900 every six days.

Magnuson's lone argument is that § 2F1.1(b) (3) is limited to "active" rather than "passive" marketing. This view is derived from Judge Berzon's dissent in the Ninth Circuit's recent decision in United States v. Pirello.⁴  Judge Berzon argued that the use of the word "solicitation" in the guideline "denotes more than simply advertising" and "suggests some sort of one-on-one importuning."⁵ 

We decline to adopt such a restrictive view. The plain meaning of solicitation is to "solicit orders or trade, as for a business house."⁶  Moreover, two of the mediums listed in the commentary note— mail and the Internet—are themselves passive and often lack the personal entreating required by Judge Berzon. A mass mailing to 300,000 people is no more active than an advertisement in a newspaper. Similarly, in a different context, we have recognized that many Internet websites are passive.⁷  We agree with the majority in Pirello and the Second Circuit that § 2F1.1(b) (3) merely requires advertising that reaches a "large number of persons."⁸  The district court did not err by imposing a two-level enhancement under § 2F1.1(b) (3).

Magnuson also argues that the district court clearly erred by imposing a $20,000 fine. District courts are directed to impose a fine in all cases, unless the defendant establishes that he will be unable to pay.⁹  The defendant bears the burden of proving his inability to pay a fine, and may rely upon the PSR to establish his inability to pay.¹⁰  Because the district court adopted the PSR in this case, the government was required to present evidence showing that Magnuson could, in fact, pay a fine.¹¹  Given that the PSR indicated that Magnuson had a net worth of $100,000, the government met its burden and the district court did not clearly err by imposing a $20,000 fine.

AFFIRMED.