NOT RECOMMENDED FOR PUBLICATION File Name: 22a0303n.06 No. 21-5946 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 25, 2022 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY LUIS ALONZO GODOY-VALLES, ) Defendant-Appellant. ) OPINION ) ) Before: DONALD, BUSH, and NALBANDIAN, Circuit Judges. BERNICE BOUIE DONALD, Circuit Judge. Defendant appellant Luis Alonzo Godoy- Valles entered an open plea to illegally reentering the United States after having been removed subsequent to a felony conviction, in violation of 8 U.S.C. § 1326. The district court sentenced Godoy-Valles to thirty months of imprisonment, imposed a three-year term of supervised release, and ordered him to pay a fine of $4,000. Godoy-Valles appeals only the monetary fine. For the following reasons, we affirm. The Sentencing Guidelines require the district court to “impose a fine in all cases.” U.S.S.G. § 5E1.2(a). In determining the amount of the fine, the court must consider several factors, including, but not limited to: the defendant’s income, earning capacity, and financial resources; the burden on the defendant and his dependents; any restitution or reparations ordered; any collateral consequences of conviction; prior fines for a similar offense; the expected costs of imprisonment or supervised release; and the need to promote respect for the law, provide just Case No. 21-5946, United States v. Godoy-Valles punishment, and adequate deterrence. 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2(d)(1)–(8). Upon its review of the relevant factors, the district court should assess an amount “sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive.” U.S.S.G. § 5E1.2(d). It is afforded vast discretion in deciding the appropriate amount of a fine. United States v. Blackwell, 459 F.3d 739, 770 (6th Cir. 2006). The Sentencing Guidelines provide for an exception “where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a). In such cases, “the court may impose a lesser fine or waive the fine.” U.S.S.G. § 5E1.2(e). Evidence of an inability to post bond and the appointment of counsel “are significant indicators of present inability to pay any fine.” Id., cmt. n.3. “In conjunction with other factors, they may also indicate that the defendant is not likely to become able to pay any fine.” Id. The burden of showing a present or future inability to pay ultimately rests with the defendant, United States v. Lantz, 443 F. App’x 135, 146 (6th Cir. 2011), and we review the district court’s determination that a defendant is able to pay a fine for clear error, United States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990). Godoy-Valles argues that the district court failed to consider his inability to pay a fine. Godoy-Valles points to his financial affidavit in support of court-appointed counsel where he reported no income or assets, and the magistrate judge’s determination that he was unable to afford …
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