UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-30892 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JULIUS WARNER MARACALIN, also known as “Big Warner”,

Defendant-Appellant.

Appeal from the United States District Court For the Middle District of Louisiana (CR-95-004-B-M2) November 10, 1997

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges. PER CURIAM:* Julius Warner Maracalin pleaded guilty to a multi-count

indictment charging him with conspiracy to possess with intent to

distribute cocaine base and distribution of cocaine base.2 The

district court sentenced him to concurrent 235-month terms of

imprisonment, to be followed by a five-year term of supervised

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 See

; 21 U.S.C. 841(a)(1);

. release. The district court also imposed a fine of $100,000.

Judge Stewart granted Maracalin leave to appeal under the Criminal

Justice Act.3

First, Maracalin argues in his brief that the district court

erred by refusing to allow him to withdraw his guilty plea prior to

the court’s acceptance of the plea agreement. In his reply brief,

however, he concedes that his argument is foreclosed by the Supreme

Court’s recent decision in United States v. Hyde4 (holding that

when the district court has accepted a defendant’s plea but

deferred accepting the plea agreement, the plea may not be

withdrawn unless the defendant shows a fair and just reason under

Fed. R. Crim. P. 32(e)). Thus, we consider his argument abandoned

and unreviewable.5

Second, Maracalin argues that his plea was not knowing and

voluntary because the district court erroneously informed him that

he had the burden of proving that he was not guilty if he chose to

proceed to trial. Even if the district court committed the alleged

error, it did not affect Maracalin’s substantial rights. On three

occasions during the plea colloquy, Maracalin stated that he

understood that it was the government’s burden to prove guilt

beyond a reasonable doubt. Under these circumstances, we cannot

conclude that the district judge’s isolated remark to the contrary

3 18 U.S.C. § 3006A 4

(1997) 5 See United States v. Musquiz,

(5th Cir. 1995); see also United States v. Olano,

(1993).

2 was a material factor in his decision to plead guilty. Because his

substantial rights were not affected by the alleged error, his

argument must fail.

Third, Maracalin argues that the district court, in violation

of Fed. R. Crim. P. 11(e), participated improperly in the plea

negotiations. Though Maracalin points to various statements made

by the district court that allegedly demonstrate improper judicial

participation, none of the complained-of statements suggests that

the court encouraged him to enter a particular plea. We find no

violation of Rule 11(e).

Fourth, Maracalin argues that his conviction and sentence

cannot stand because he received ineffective assistance of counsel.

“A claim of ineffective assistance of counsel generally cannot be

addressed on direct appeal unless the claim has been presented to

the district court; otherwise, there is no opportunity for the

development of an adequate record on the merits of that serious

allegation.”6 Although the record may be developed adequately on

the merits to resolve some of Maracalin’s ineffectiveness claims,

it is not developed adequately to resolve all of them. As such, we

decline to address the matter on direct appeal. Accordingly,

Maracalin’s motion to supplement the record on appeal with a letter

relating to this issue is denied.

Finally, Maracalin argues that the district court erred by

ordering him to pay a fine of $100,000 without first making

specific factual findings as to his ability to pay such a fine. We

6 United States v. Navejar,

(5th Cir. 1992)

3 have stated that “when a sentencing court adopts a PSR which

recites facts showing limited or no ability to pay a fine, the

government must come forward with evidence showing that a defendant

can in fact pay a fine before one can be imposed.”7 The sentencing

court must make findings as to the defendant’s ability to pay.8 In

this case, the PSR indicated that Maracalin would not have any

money with which he could pay a fine. We remand to the district

court with instructions to make the requisite findings as to

Maracalin’s ability to pay the fine. We note, however, that our

case law plainly states that a finding of indigence does not

necessarily preclude the imposition of a fine.9 That is, upon

remand, the district court may make specific findings that the

defendant is indigent, but nonetheless properly impose a fine.10

The defendant’s conviction and sentence are AFFIRMED. That

portion of the judgment imposing the fine is VACATED and the case

is REMANDED to the district court for further proceedings.

7 United States v. Fair,

(5th Cir. 1992) 8 United States v. Hodges,

(5th Cir. 1997) 9 United States v. Altimirano,

(5th Cir. 1993) 10 See

.

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