UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 99-20811 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDWIN W. RUBIS, also known as Eddie, also known as Richardo Castillo,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, Houston Division H-98-CR-57-5

October 12, 2000

Before DAVIS and EMILIO M. GARZA, Circuit Judges, and POGUE*, Judge.

PER CURIAM:**

Rubis raises three objections to his sentence which the

district court imposed following his conviction on drug trafficking

charges: (1) the enhancement of his sentence for obstruction of

justice; (2) the quantity of drugs on which the sentence was based;

and (3) the propriety of the fine.

* Judge of the U.S. Court of International Trade, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We conclude that Rubis’ objections based on the quantity of

drugs attributed to him and the propriety of the enhancement for

obstruction of justice are without merit. After reviewing the

record, the briefs and argument of counsel, we conclude that the

district court committed no plain error in its disposition of these

two issues and we affirm these rulings.

We find more substantial, however, Rubis’ argument that the

district court committed plain error in imposing a $25,000 fine.

The PSR reports that Rubis has no assets and, based on the

defendant’s inability to pay a fine within the guideline range,

recommended a reduced fine of $5,000. As Rubis is facing a 40 year

prison sentence, we see no facts that suggest any resource from

which a fine would be paid except perhaps from Rubis’ prison

earnings.

As an initial matter, however, it is unclear whether the

record supports a conclusion that Rubis had the ability to pay the

fine. It is also unclear whether district court intended to impose

the fine. The oral sentence imposed by the court does indicate

that the court imposed a $25,000 fine. However, the written

judgment indicates that the fine is waived. Before considering

whether the district court committed plain error in imposing such

a fine, we believe it prudent to remand this case to the district

court to give it an opportunity to reconsider whether it wishes to

impose this fine and, if so, to resolve the ambiguity between its

2 oral sentence and the written judgment.

Accordingly, the district court’s judgment is AFFIRMED, except

for the court’s imposition of the $25,000 fine. That portion of

the sentence is VACATED and the case is REMANDED for further

proceedings consistent with this opinion.

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