United States of America, Plaintiff-appellee, v. Phyllis Christine Henson, Also Known As Phyllis Christinemagee, Defendant-appellant, 64 F.3d 670 (10th Cir. 1995)

After examining the briefs and 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); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.

Phyllis Christine Henson appeals her guideline sentence of 68 months' imprisonment and a $1,500 fine, imposed following her plea of guilty to one count of possession with intent to distribute methamphetamine and one count of maintaining a residence for the purpose of distributing or using controlled substances.

It is difficult to discern any basis for this appeal. Ms. Henson concedes the correctness of the sentencing guideline range calculated in the revised presentence report and adopted by the court: 63-78 months (BOL, adjusted for acceptance of responsibility, of 25, CHC II), Brief of Defendant/Appellant at 5. In fact, it is the range suggested by Ms. Henson's counsel in his February 18, 1995, letter to the United States Probation Office in response to the original PSR.

Ms. Henson's brief alludes to the requirement under Fed. R. Crim. P. 32(c) of findings on disputed facts; but no facts were in dispute at the point of sentencing, as revealed by the excerpts from the transcript quoted below. It also alludes to the defendant's plea agreement with the government in which the government agreed to recommend a sentence at the low end of the guideline range, which the government did, as Ms. Henson's brief acknowledges. Id. at 5.

Finally, Ms. Henson's brief argues that the district court failed to make the findings required under 18 U.S.C. 3553(c) (1) regarding the particular sentence imposed and, if the range exceeds 24 months, the reason for imposing a sentence at a particular point in the range. However, the range did not exceed 24 months; the court's comments and references to the PSR made it crystal clear why the particular guideline was selected; and Ms. Henson's counsel agreed to everything germane to the point in question.

As to the fine of $1,500, Ms. Henson's brief argues an inability to pay and no findings on the point, but acknowledges that the district court is not required to make findings. United States v. Sneed, 34 F.2d 1570 (10th Cir. 1994). In any event, the district court expressly referred to the inmate financial responsibility program as a source of funds, plus employment during supervised release. Tr. at 8. Moreover, neither the defendant nor her counsel objected, and the record certainly does not disclose plain error.

It is instructive to quote the following excerpts from the March 3, 1995, sentencing hearing transcript which the government has made available to the court:

THE COURT: All right. You had filed objections to the report as of February 21, 1995. Have those objections been taken care of as far as you're concerned?

MR. AMATUCCI: Yes, they have, Your Honor.

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THE COURT: ... Are there any issues in dispute?

MR. LITCHFIELD [government's counsel]: I don't believe there are at this time, Your Honor.

MR. AMATUCCI: I don't believe there are, Your Honor.

THE COURT: The Court's conclusions as to the appropriate offense level and criminal category are as follows: The total offense level under the guideline provisions is 25. The criminal history category is two. The statutory provision for custody would be, count one, five to 50 years, count three, 20 years . Under the guidelines for counts one and three, the sentence would be between 63 and 78 months. The defendant is ineligible on all counts for probation. Supervised release under count one would be at least four years, under count three, not more than three years. Under the guidelines count one would be four to five years, count three, two to three years. The statutory provision for a fine for count one is $2 million, for count three, 500,000. Under the guidelines, counts one and three would be 10,000 to 2,500,000. Restitution is not applicable. Special assessment is $50 for each count for a total of 100. The Court finds under the guidelines the costs of imprisonment to be $1,734 per month. The costs of supervision is $180.90 per month. Is there any disagreement, counsel, with the statutory provisions as outlined in the guideline provisions as outlined in the Court's findings?

MR. LITCHFIELD: No, Your Honor.

MR. AMATUCCI: No, Your Honor. We're in agreement.

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MR. LITCHFIELD: ... Oh, excuse me, Your Honor, I'm sorry. We did recommend--I would at this time like to recommend the low end of the guidelines, pursuant to our agreement with Ms. Henson. Thank you, Your Honor.

THE COURT: Very well. The Court will now state the sentence, but the attorneys will have a final chance to make legal objection before sentence is finally imposed.

Pursuant to the sentencing reform act of 1984, it is the judgment of the Court that the Defendant Phyllis Christine Henson is hereby committed to the custody of the Bureau of Prisons in counts one and three for a term of 68 months on each count to run concurrently each with the other. The Court finds that based on the length of imprisonment imposed in this case, the defendant will probably be able to obtain some type of trade employment that will allow her to make payments toward a fine while incarcerated. Therefore, the Court orders the defendant to pay a fine of $1500, being $750 on each of count one and count three. The fine is due immediately, but any amount not paid immediately shall be paid during the period of incarceration through the Bureau of Prisons inmate financial responsibility program. Upon the defendant's release from imprisonment any remaining unpaid balance shall be paid during the term of supervised release. Upon release from imprisonment, the defendant shall be placed on supervised release under count one for a term of five years, and for a term of three years on count three. Each term shall run concurrently with the other.

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This is the sentence of the Court. Any objection on behalf of the Government.

MR. LITCHFIELD: No, Your Honor.

THE COURT: Any objections on behalf of the Defendant?

MR. AMATUCCI: Your Honor, the only thing, that $100 special assessment to be paid immediately, I don't believe she has the funds to pay that, if the Court would give her some extended time to pay that.

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THE COURT: ... Is there any reason, other than the reasons already argued, why this sentence should not be imposed as stated?

MR. LITCHFIELD: Not from the United States, Your Honor.

MR. AMATUCCI: We see no reason.

THE COURT: Is there anything else on behalf of the parties?

MR. LITCHFIELD: Not on behalf of the United States, Your Honor.

MR. AMATUCCI: Nothing on behalf of the defendant, Your Honor.

For the reasons stated above, we dismiss for lack of appellate jurisdiction that portion of this appeal relating to the sentence of incarceration because the sentence imposed is within the applicable guideline range, United States v. Garcia, 919 F.2d 1478, 1481-82 (10th Cir. 1990). There being no clear error, we affirm the fine of $1,500.

DISMISSED in part and AFFIRMED in part.