UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-10337

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOE WESLEY CROSSLIN,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas (4:96-CR-131-A-1) February 10, 1998

ON PETITION FOR REHEARING

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:1

Appellant-Crosslin’s petition for rehearing is granted to the

extent and for the reasons set forth below. Our panel decision is

otherwise left undisturbed. In his petition, Crosslin correctly

points out that we erred in affirming the fine imposed by the

district court. “When a sentencing court adopts a [presentence

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. investigation report] which recites facts 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.” United States v. Fair,

(5th

Cir. 1992). Here, the district court adopted the presentence

investigation report. The presentence investigation report

contained evidence that the defendant could not pay. See

Presentence Investigation Report ¶ 45. The government did not come

forward with evidence to show ability to pay. And the court did

not articulate its reasons for departing from the presentence

investigation report. Under these circumstances, we cannot uphold

the fine imposed by the district court. See United States v.

Hodges,

(5th Cir. 1997).

For the foregoing reasons, Crosslin’s petition for rehearing

is GRANTED in part and DENIED in part. We VACATE Crosslin’s $5,000

fine and REMAND this case for further consideration. Crosslin’s

conviction and sentence of incarceration are otherwise AFFIRMED.