United States v. Brantley

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 21, 2008

No. 07-30724

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OLAN WAYNE BRANTLEY

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before PRADO, ELROD, and HAYNES, Circuit Judges.

JENNIFER W. ELROD, Circuit Judge:

Olan Wayne Brantley appeals his sentence after pleading guilty to one

count of passing counterfeit checks and one count of bank fraud. He contends

that the sentence was unreasonable and that the district court’s imposition of a

fine was erroneous. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brantley was charged with four counts of knowingly uttering and

possessing counterfeit securities, in violation of 18 U.S.C. § 513(a), and with one

count of making a fraudulent application for a bank loan, in violation of 18

U.S.C. § 1014. He pleaded guilty to counts three and five.

No. 07-30724

In the presentence report (“PSR”), the probation officer calculated that

Brantley’s total offense level was sixteen and that his criminal history category

was V. The probation officer determined that Brantley’s United States

Sentencing Guidelines (“Guidelines”) range was forty-one to fifty-one months of

imprisonment and three to five years of supervised release, that the statutory

maximum fine for each of Brantley’s counts of conviction was $250,000, and that

the Guidelines range for a fine was $5,000 to $50,000. The probation officer also

found that Brantley did “not have the ability to pay a fine in addition to

restitution” at the time the PSR was prepared.

Brantley offered corrections to factual assertions in the PSR but did not

object to the Guidelines range calculations. The government moved for an

upward departure or, alternatively, for a variance above the Guidelines sentence

range on the basis that Brantley’s criminal history category did not adequately

reflect the seriousness of his past criminal history or the likelihood that he

would commit future crimes.

The district court overruled Brantley’s requests to correct factual

assertions in the PSR, granted the government’s request for a sentence above the

Guidelines range, and sentenced Brantley to concurrent sentences of 120 months

of imprisonment on the counterfeit-securities count and 180 months of

imprisonment on the bank-fraud count. The district court also imposed

concurrent sentences of three years of supervised release on the counterfeit-

securities count and five years of supervised release on the bank-fraud count.

The district court explained that the sentences were based on Brantley’s

extensive criminal history, his personal characteristics, the offenses of

conviction, and the fact that incarceration and probation had not deterred him

from crime, thereby requiring a long imprisonment term to protect the public.

The district court also explained that it was imposing a fine of $65,000 in lieu of

restitution due to the “lack of information and number of unidentified victims”

in the case. Brantley appeals.

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II. DISCUSSION

A. Reasonableness of Sentence

Brantley first argues that the sentence of incarceration imposed by the

district court was unreasonable because it was 253% higher than the top of the

Guidelines range and because the district court’s basis for imposing it was

primarily his criminal history category. He maintains that the basis for the

sentence was improper because criminal history and the other 18 U.S.C. §

3553(a) factors relied upon by the district court were part of the Guidelines

range calculation, and that according to United States v. Perrin, 478 F.3d 672,

678 (5th Cir. 2007), abrogation recognized by United States v. Williams, 517 F.3d

801 (5th Cir. 2008), factors included in the Guidelines range calculation cannot

support a non-Guidelines sentence. He also contends that the sentence imposed

was unreasonable because the district court did not give enough weight to the

Guidelines sentence range, and that pursuant to United States v. Duhon, 440

F.3d 711 (5th Cir. 2006), vacated, 128 S. Ct. 853 (2008), the district court

improperly sentenced him based on its dissatisfaction with the Guidelines range

calculation.

This court recognizes three types of sentences: (1) “a sentence within a

properly calculated Guidelines range”; (2) “a sentence that includes an upward

or downward departure as allowed by the Guidelines”; and (3) “a non-Guideline

sentence” or a “variance” that is outside of the relevant Guidelines range.

United States v. Smith, 440 F.3d 704, 706–08 (5th Cir. 2006). The district court

stated that based on the § 3553(a) factors, the sentence was outside of the

Guidelines range both as an upward departure and as a variance. For present

purposes, however, the specific characterization is irrelevant because, as shown

below, the sentence imposed was reasonable “under the totality of the relevant

statutory factors.” United States v. Jones, 444 F.3d 430, 441 (5th Cir. 2006).

In reviewing Brantley’s sentence, this court must first consider whether

the district court made a significant procedural error. Gall v. United States, 128

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No. 07-30724

S. Ct. 586, 597 (2007). If no procedural error exists, the court then considers

“the substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,” irrespective of whether the sentence falls within the

Guidelines range. Id. Because Brantley did not object to the reasonableness of

the sentence before the district court, this court reviews the sentence for plain

error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). To

demonstrate plain error, Brantley must show “error that is plain and that

affect[s] substantial rights.” United States v. Reyna, 358 F.3d 344, 350 (5th Cir.

2004) (internal quotation marks and citation omitted). If he can meet these

criteria, then the court has “the discretion to correct the forfeited error but

should do so only if the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotation marks and citation

omitted).

As Brantley does not raise any procedural challenges to the sentence of

incarceration, this court must consider the substantive reasonableness of the

sentence. In doing so, the court should consider “the totality of the

circumstances, including the extent of any variance from the Guidelines range.”

Gall, 128 S. Ct. at 597. The court, however, owes deference to the district court’s

determination of the appropriate sentence based on the § 3553(a) factors and

may not reverse the district court’s ruling just because it would have determined

that an alternative sentence was appropriate. Id. The appropriate factors are:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

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No. 07-30724

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established [in

the applicable Guidelines] . . . ;

(5) any pertinent policy statement . . . [;]

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

The district court determined that the sentence imposed was appropriate

based on four of the statutory factors: Brantley’s history and characteristics; the

need for the sentence to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment; the need for the sentence to provide

adequate deterrence; and the need for the sentence to protect the public from

further crimes. The district court also relied upon Brantley’s criminal history

in the PSR as the factual basis for imposing the sentence based on these factors.

This determination was reasonable for at least three reasons. First,

Brantley’s undisputed criminal history provides ample justification for the

sentence. His criminal record includes eight separate convictions on a total of

fourteen counts in five states over the twenty years prior to his sentencing. All

of these convictions, like his present convictions, were for theft or fraud. The

record thus indicates that the district court did not exaggerate when it stated

that Brantley had “been practically a one-man crime wave for 30 years.” The

record also demonstrates the reasonableness of the district court’s conclusions

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No. 07-30724

that Brantley’s personal characteristics showed that he had not “learned [his]

lesson” from his prior convictions and that a long incarceration period was

required to provide just punishment, to ensure adequate deterrence, and to

protect the public.

Second, Brantley’s reliance on Perrin and Duhon is misplaced. He

correctly asserts that according to Perrin, a district court could not rely upon a

factor considered in the Guidelines sentence range calculations to justify a non-

Guidelines sentence. 478 F.3d at 678. In Williams, however, this court

expressly recognized Perrin’s abrogation by the Supreme Court’s rulings in Rita

v. United States, 127 S. Ct. 2456, 2465 (2007), Gall, 128 S. Ct. at 596–97, and

Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), and held instead that a

district court may rely upon factors already incorporated by the Guidelines to

support a non-Guidelines sentence. Williams, 517 F.3d at 810–11 & n.55. In

addition, to the extent Duhon provided that a district court could not impose a

non-Guidelines sentence based on dissatisfaction with the Guidelines sentence

range, it also has been abrogated, id. at 809 & n.42, and the Supreme Court has

vacated the ruling in light of Gall. Duhon, 128 S. Ct. at 853.

Finally, the record does not support Brantley’s assertions that the district

court improperly failed to use the Guidelines sentence range as a framework and

to give it sufficient weight. The Guidelines sentence range was calculated in the

PSR, neither party objected to the calculation, and the district court adopted the

findings of the PSR. The district court also stated that it usually paid “a lot of

attention” to the Guidelines range but thought that the present case was

exceptional, showing that the court did give consideration to the Guidelines

sentence range. Accordingly, Brantley has not shown that the district court

committed plain error in imposing his sentence of incarceration.

B. Imposition of Fine

Brantley also argues that the district court erred in imposing a $65,000

fine because the PSR showed that he was unable to pay the fine and because his

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No. 07-30724

health problems—specifically, diabetes and three crushed discs in his

back—showed that he would not become able to pay the fine. Because Brantley

did not object to the fine at sentencing, this court’s review is for plain error. See

United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).

In the PSR, the probation officer stated that Brantley reported having no

assets or liabilities, that Brantley had been incarcerated since his arrest on the

present charges, and that Brantley did “not have the ability to pay a fine in

addition to restitution at this time.” The probation officer did not make any

findings regarding Brantley’s future earning capacity or his ability to pay a fine

in the future, but the PSR did reflect that Brantley was fifty years old, had three

crushed discs in his back, and had diabetes. Regarding restitution, the

probation officer determined that the number of victims was so large that

ordering restitution was impractical and recommended that the court impose

community restitution. The probation officer also found that the total loss

incurred by the victims was $64,467.43.

At sentencing, the district court explicitly adopted the factual findings in

the PSR. The district court did not impose a restitution order due to the large

number of victims in the case but instead imposed a fine of $65,000,

approximately the amount of loss incurred by the victims. The government did

not present any evidence of Brantley’s ability to pay a fine at sentencing, and the

district court did not make any findings regarding his ability to pay a fine. The

district court did state, however, that Brantley could make payments from

prison wages, that he did not have to pay the standard interest requirement, and

that any unpaid portion of the fine would be made a condition of his supervised

release “with monthly payments at a rate of not less than 15 percent of [his]

gross monthly income.” The district court also ordered that any federal income

tax refunds be paid toward the fine.

The Guidelines state that “[t]he court shall impose a fine in all cases,

except where the defendant establishes that he is unable to pay and is not likely

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No. 07-30724

to become able to pay any fine.” U.S.S.G. § 5E1.2(a); see United States v. Fair,

979 F.2d 1037, 1040 (5th Cir. 1992). Toward this end, the Guidelines provide

fine ranges based on the offense level and list factors that the court must

consider. U.S.S.G. § 5E1.2(c)(3), (d). A district court may waive the fine or

assess a fine below the Guidelines range “[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 [under the

Guidelines], or (2) imposition of a fine would unduly burden the defendant’s

dependents . . . .” U.S.S.G. § 5E1.2(e).

“[A] defendant may rely on the PSR to establish his inability to pay a

fine . . . .” Fair, 979 F.2d at 1041. In cases where the district court adopts a PSR

“showing limited or no ability to pay a fine the government must then come

forward with evidence showing that a defendant can in fact pay a fine before one

can be imposed.” Id. “Once such a showing has been made,” the district court

has the discretion to determine, upon consideration of the factors in U.S.S.G. §

5E1.2(d), whether a fine should be imposed. Id. at 1041–42. If the district court

adopts the PSR but “chooses to disregard [the PSR’s recommendation on fines],

it must make specific findings regarding the defendant’s ability to pay a fine.”

Landerman, 167 F.3d at 899 (citing Fair, 979 F.2d at 1041).

In Fair, we held that the district court erred by imposing a fine after

adopting a PSR which expressly recommended against a fine. 979 F.2d at 1041.

The PSR in that case stated that “[t]he defendant [did] not appear to have any

assets . . . to pay [a] fine . . . immediately, nor [did] he appear to have the means

to pay a fine on an installment basis after a lengthy period of incarceration.” Id.

at 1040. Even so, the district court imposed a $20,000 fine, explaining later in

a supplemental sentencing memorandum that the court had considered the

defendant’s present indigency and that the defendant “could pay off the fine in

monthly installments after his release.” Id. Emphasizing that the district

court’s determinations directly contradicted the PSR’s recommendations on the

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No. 07-30724

defendant’s present and future ability to pay a fine, we vacated the fine and

remanded for further explanation because we were “hard pressed” to understand

how the defendant would pay it. Id. at 1041.

In this case, by contrast, the district court did not reject or depart from the

adopted PSR’s recommendation on a fine, and as a result, the court was not

required to make specific findings regarding Brantley’s ability to pay the fine.1

Unlike the PSR in Fair, which explicitly stated that the defendant lacked either

the present or the future capacity to a pay a fine, the PSR here determined only

that Brantley was financially unable “to pay a fine in addition to restitution at

this time.” The district court’s imposition of a fine in lieu of restitution

comported squarely with the PSR’s conclusion.

We underscored the significance of this distinction in Landerman, where

we upheld the district court’s imposition of a $10,000 fine under the framework

set forth in Fair. 167 F.3d at 899. The PSR in Landerman concluded that the

defendant lacked the ability to pay a $15,000 to $150,000 fine but recommended

the court impose a fine sufficient to pay the costs of imprisonment. Id. at 900.

The PSR also “contain[ed] evidence that indicate[d] that [the defendant] might

be able to pay a lesser fine,” and in imposing the fine, the district court waived

the interest requirement and made the fine payable in monthly installments

upon the defendant’s supervised release. Id. Reviewing for plain error, we

affirmed the imposition of the fine because “the district court did not depart from

1

Nor does the PSR show that Brantley’s age and health problems will limit or prevent

him from paying the fine over time. Although the PSR stated that Brantley (who had been

gainfully employed in construction and as a roughneck) had no assets, it also found that he had

no liabilities, and it did not determine that Brantley was presently ineligible for a job in prison,

or that he will be ineligible for employment upon his release. See United States v. Matovsky,

935 F.2d 719, 723 (5th Cir. 1991) (“Recognizing that [the defendant] is ‘currently without

substantial assets or gainful employment and therefore unable to pay the full fines

immediately, we nevertheless conclude that the record supports the judge’s implicit finding

that [he] can obtain employment and pay the fines over time.’” (quoting United States v.

Mastropierro, 931 F.2d 905, 907 (5th Cir. 1991))). The government, therefore, was not required

to produce evidence showing that Brantley could in fact pay the fine.

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No. 07-30724

the presentence report.” Id.

Similarly here, in addition to following the PSR’s recommendation on a

fine, the district court stated that Brantley could make payments from prison

wages, that he did not have to pay the standard interest requirement, that any

unpaid portion of the fine would be made a condition of his supervised release

“with monthly payments at a rate of not less than 15 percent of [his] gross

monthly income,” and that any federal income tax refunds would be paid toward

the fine. Thus, the district court in this case—like the district court in

Landerman—not only imposed a fine in accordance with the PSR; it also made

express provisions to facilitate its payment.2 See also United States v. Voda, 994

F.2d 149, 155 n.14 (5th Cir. 1993) (“Normally, a district court does not have to

express reasons for imposing a fine as long as it is shown that the judge

considered the defendant’s ability to pay.”).

Finally, even assuming arguendo that the district court erred in imposing

the fine, any such error would not have affected Brantley’s substantial rights.

The PSR stated that the total loss incurred by the victims was $64,467.43, and

the district court imposed a fine in lieu of restitution of approximately the same

amount—$65,000. Cf. United States v. Miller, 406 F.3d 323, 331–32 (5th Cir.

2005) (holding that the alleged incorrect designation of the recipient of

restitution did not affect the defendant’s substantial rights “because [the

defendant] would be required to pay the same amount” in either case).

Accordingly, Brantley has not shown that the district court’s imposition

of the fine amounted to plain error. See United States v. Rodriguez, 15 F.3d 408,

2

Furthermore, a fine is meant to be a sanction, and the mere fact that it may be a

significant financial burden does not constitute a ground for error. See Matovsky, 935 F.2d at

723 (5th Cir. 1991) (“The clearly enunciated purpose of a fine is a punitive sanction, and it is

not an abuse of discretion to impose a fine that ‘is likely to constitute a significant financial

burden.’” (quoting United States v. Doyan, 909 F.2d 412, 414 (10th Cir. 1990))). It is also

important to note that Brantley does not allege that the fine was unreasonable because it was

above the Guidelines range of $5,000 to $50,000. Accordingly, he has abandoned that

argument on appeal. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

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417 (5th Cir. 1994) (noting that “one of the obvious, and most salutary, purposes

of the plain error rule is to enforce the requirement that parties object to errors

at trial in a timely manner so as to provide the trial judge an opportunity to

avoid or correct any error,” and that “[i]f it were so critical that [the defendant]

not be fined, surely something would have been said about it at sentencing”

(internal quotation marks and citation omitted)).

III. CONCLUSION

Finding no plain error in the district court’s imposition of Brantley’s

sentence and fine, we AFFIRM.

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