United States v. Michael Anthony Favorito

Good Law
5 F.3d 1338·93 Daily Journal DAR 12319·1993 WL 376733·1993 U.S. App. LEXIS 24739·93 Cal. Daily Op. Serv. 7246
United States Court of Appeals for the Ninth CircuitSeptember 28, 199392-50465California275 words

Opinion

Opinion

Brunetti, J.

Michael Anthony Favorito appeals the fine imposed on him by the district court in connection with his guilty plea to three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113 (a) (1988). The court sentenced Favorito to three concurrent terms of 135 months each and ordered him to pay restitution, a special assessment, and a fine.

Favorito contends that: (1) the district court clearly erred in finding that he had the ability to pay a fine; and (2) the district court misapplied § 5E1.2(i) of the United States Sentencing Guidelines (Nov.1991) (Guidelines) by imposing a fine for incarceration costs without first imposing a punitive fine pursuant to Guidelines § 5E1.2(c). We affirm the district court on both issues.

ABILITY TO PAY

The district court’s determination that a defendant has the ability to pay a fine is reviewed for clear error. United States v. Nazifpour, 944 F.2d 472, 475 (9th Cir.1991). Under the Guidelines, the defendant bears the burden of proving inability to pay. United States v. Quan-Guerra, 929 F.2d 1425, 1427 (9th Cir.1991). The court may impose a fine upon even an indigent defendant if it finds that the defendant “has sufficient earning capacity to…

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