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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40236
Summary Calendar

UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
RUDOLPH CARL MAGNUSON,
Defendant-Appellant.

Appeal from the United States District Court
For the Eastern District of Texas

September 20, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
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 mediumsit 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
1 Former U.S.S.G. § 2F1.1(b)(3) has since been repealed and
replaced by current U.S.S.G. § 2B1.1(b)(2)(A)(ii).
2 U.S.S.G. § 2F1.1 cmt. n.3.
3 United States v. Deming, 269 F.3d 107, 109 (2d Cir. 2001).
4 255 F.3d 728 (9th Cir. 2001).

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
notemail and the Internetare 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
5 Id. at 733 (Berzon, J., dissenting).
6 RANDOM HOUSE COLLEGE DICTIONARY 1250-51 (1982).
7 Mink v. AAAA Develop. LLC, 190 F.3d 333, 336 (5th Cir.
1999).
8 Pirello, 255 F.3d at 731-32; See Deming, 269 F.3d at 109.
9 U.S.S.G. § 5E1.2(a).

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.
10 United States v. Fair, 979 F.2d 1037, 1042 (5th Cir. 1992).
11 Id.