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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-2016

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RAY ALTAMIRANO,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

( December 20, 1993 )
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The district court imposed a probated fine. It also adopted
a presentence report suggesting that the defendant had no present
or future ability to pay a fine. The defendant contends that the
district court lacked authority to probate a fine and in any event
should not have done so because he had no present or anticipated
ability to pay. We conclude that inability to pay is not an
absolute barrier to a fine. We also conclude that the district
court had no authority to probate the fine. We vacate the probated
fine and remand for resentencing to give the district court the
chance to reconsider the propriety or amount of the fine.

I.
Michael Altamirano pleaded guilty to a drug offense. The
district court sentenced him to 60 months in prison, 5 years of
supervised release, a $50 special assessment, and a $50,000
probated fine. The PSR stated that Altamirano resided in jail, had
no job or assets, had an eighth grade education, and had performed
menial tasks at various restaurants. It made no recommendation on
imposing a fine.
II.
There are some general starting points. A sentencing court
cannot constitutionally enhance the jail sentence of an indigent
person beyond the statutory maximum because he cannot afford to pay
a fine. Williams v. Illinois, 399 U.S. 235, 242-43 (1970).
Similarly, a state cannot convert a fine imposed under a fine-only
statute into a jail term solely because the defendant cannot pay.
Tate v. Short, 401 U.S. 395, 399 (1971). More recently, the Court
expanded this principle in Bearden v. Georgia, 103 S.Ct. 2064
(1983). The Court held that a district court cannot revoke
probation for failure to pay a fine unless it finds that
probationer willfully refused to pay, that probationer did not make
sufficient bona fide efforts legally to acquire adequate financial
resources, or that another sanction would not serve the state's
interests in punishment and deterrence. Id. at 2073.
The Sentencing Guidelines express similar sensitivity to
indigency, requiring a fine unless the defendant establishes that
he cannot pay and is not likely to become able to pay. U.S.S.G.
2

� 5E1.2(a) (Nov. 1992). After determining that a defendant can
pay, a court may consider the factors in U.S.S.G. � 5E1.2(d) (Nov.
1992) to determine the fine's place within the guideline range.
Under U.S.S.G. � 5E1.2(d) (Nov. 1992), a court again must consider
the defendant's ability to pay in light of his earning capacity and
financial resources. U.S.S.G. � 5E1.2(d)(2) (Nov. 1992).
Neither the Constitution, nor applicable sentencing statutes
and guidelines, however, categorically prohibit a court from ever
imposing a fine after the defendant has proven his inability to
pay. United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir.
1993). The Court recognized this fact in Williams: "[N]othing we
now hold precludes a judge from imposing on an indigent, as on any
defendant, the maximum penalty prescribed by law." 399 U.S. at
243. The Court echoed this sentiment in Bearden: "A defendant's
poverty in no way immunizes him from punishment." 103 S.Ct. at
2071. Under this arrangement, sentencing courts consider a
defendant's ability to pay only after the government unsuccessfully
has attempted to collect the fine. Voda, 994 F.2d at 154 n.13
(quoting United States v. Merritt, 639 F.2d 254, 257 (5th Cir.
1981)).
Similarly, isolated guidelines require sentencing courts to
consider indigency in calculating a fine, but the guidelines, taken
as a whole, do not prohibit sentencing courts from imposing fines
on defendants who cannot pay. U.S.S.G. �� 5E1.2(a), 5E1.2(d)(2),
5E1.2(f) (Nov. 1992). To be sure, U.S.S.G. � 5E1.2(a) (Nov. 1992)
states that "[t]he court shall impose a fine in all cases, except
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where the defendant establishes that he is unable to pay and is not
likely to be able to pay a fine," but this provision must be read
in light of the fact that indigency alone has never barred
imposition of a fine and U.S.S.G. � 5E1.2(f) (Nov. 1992), which
gives a sentencing court the discretion to lessen or waive a fine
imposed on an indigent defendant.
Much of the confusion about the power of a sentencing court to
fine a defendant who cannot pay rests with the contrasting language
in U.S.S.G. � 5E1.2(a) and U.S.S.G. � 5E1.2(f). Taken together,
U.S.S.G. � 5E1.2(a) and U.S.S.G. � 5E1.2(f) suggest that a court
may fine a defendant who cannot pay, though it generally should not
impose such a sanction.
The first guidelines did not include the language in U.S.S.G.
� 5E1.2(a) (Nov. 1992) stating that a court shall impose a fine in
all cases except where the defendant establishes that he cannot and
will not be able to pay. Instead, that provision stated only that
"[e]xcept as provided in subsection (f) below, the court shall
impose a fine in all cases." U.S.S.G. � 5E1.2(a) (Nov. 1989).
Subsection (f) stated that "[i]f the defendant establishes that (1)
he is not able and, even with the use of a reasonable installment
schedule, is not likely to become able to pay all or part of the
fine required by the preceding provisions, or (2) imposition of a
fine would unduly burden the defendant's dependents, the court may
impose a lesser fine or waive the fine." U.S.S.G. � 5E1.2(f)
(emphasis added).
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The explicit prohibition against fining indigent defendants in
U.S.S.G. � 5E1.2(a) (Nov. 1992) first appeared in the November 1990
guidelines, but, curiously, U.S.S.G. � 5E1.2(f) retained its
discretionary language. In fact, a new application note in
November 1990 stated that "[t]he determination of the fine
guideline range may be dispensed with entirely upon a court
determination of present and future inability to pay any fine."
U.S.S.G. � 5E1.2, comment 3 (Nov. 1990) (emphasis added). The
application notes for the November 1992 guidelines retain the same
discretionary language. Though the explicit prohibition against
imposing fines on indigents in U.S.S.G. � 5E1.2(a) has remained in
the guidelines since November 1990, U.S.S.G. � 5E1.2(f) and the
application notes give a sentencing court the discretion to impose
a fine on an indigent defendant.
Our jurisprudence fits within this framework, as United States
v. Fair, 979 F.2d 1037 (5th Cir. 1992) does not mandate a different
result. In Fair, we recognized that a defendant may rely on a PSR
to establish his inability to pay a fine. Id. at 1041. We
suggested that if a court adopts the findings of a PSR showing that
the defendant has no or limited ability to pay, then the government
must demonstrate that he has assets or earning potential before the
court can impose a fine. Id. By its focus on proof of indigency
Fair implies its importance, but not its necessity. Fair, 979 F.2d
at 1041-42. United States v. Walker, 900 F.2d 1201, 1206-07 & n.6
(8th Cir. 1990), relied on in Fair, discusses the elements that a
5

sentencing court may consider. Voda reaffirmed the point, citing
Fair. Voda, 994 F.2d at 154 n.13.
The PSR suggested that Altamirano had no present or future
ability to pay, but made no recommendation regarding a fine. The
court adopted the PSR's findings, and the government did not
counter that Altamirano has assets or earning potential. In this
situation, the court could still impose a fine, albeit informed by
the fact that the defendant could not and was not likely to be able
to pay. The question remains whether the court had the authority
to probate the fine. We conclude that the district court lacked
the power to probate a fine, as we will explain. We do not
therefore examine the limits upon the trial court's discretion to
fine a defendant who cannot pay and who has no prospects of being
able to do so.
III.
The statutory authority for a probated sentence derives from
18 U.S.C. � 3561(a), which permits probation unless (1) the offense
is a Class A or B felony and the defendant is an individual; (2)
the offense is an offense for which probation has been expressly
precluded; or (3) the defendant is sentenced at the same time to a
term of imprisonment for the same or a different offense. 18
U.S.C. � 3561(a). All three exceptions forbid probation in this
case. Altamirano was convicted of violating 21 U.S.C.
� 841(b)(1)(B), a Class B felony under 18 U.S.C. � 3559(a)(2).
Congress expressly eliminated probation for violations of 18 U.S.C.
6

� 841(b)(1)(B). Finally, Altamirano received a 60-month prison
term for the same offense.
The Sentencing Guidelines also prohibit a probated fine in
this case. U.S.S.G. � 5B1.1(b) (Nov. 1992) tracks the three
exceptions in 18 U.S.C. � 3561(a), in that it forbids probation
for a Class B felony, when the offense of conviction precludes the
imposition of a probated sentence, or when the defendant receives
a prison term for the same offense. U.S.S.G. � 5B1.1 (Nov. 1992).
Again, these exceptions preclude the assignment of a probated
sentence in this case. The district court therefore improperly
probated the fine.
VACATED IN PART and REMANDED.
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