Appellants Martin Carl Norman, James Andrew Sanders, and John Jacob Wells were convicted by a jury of conspiracy to possess, distribute, and import marijuana, and related substantive offenses. All three now seek reversal of their convictions. Sanders and Wells also appeal their sentences, challenging the district court's application of the United States Sentencing Guidelines (U.S.S.G.). These direct criminal appeals are consolidated with Wells' appeal of the district court's denial of his motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. We affirm the convictions of all appellants, Sanders' sentence, and the district court's denial of Wells' motion to vacate his sentence.1 For the reasons set forth below, however, we vacate the portion of Wells' sentence imposing as a fine the costs of imprisonment and supervision pursuant to U.S.S.G. Sec. 5E1.2(i), and remand for resentencing.

Wells asserts that the district court erred in finding him costs of imprisonment and supervision pursuant to U.S.S.G. Sec. 5E1.2(i), without first having assessed a punitive fine pursuant to Sec. 5E1.2(a).² He argues, as he did at his sentencing hearing, that such assessment is prohibited by the language of Sec. 5E1.2(i), which states that costs of imprisonment and supervision shall be assessed as an additional fine amount. We agree and we hold that a district court may assess a fine under Sec. 5E1.2(i) only if a defendant is fined under Sec. 5E1.2(a).

This is an issue of first impression in this circuit. Several other circuits that have considered the issue have also concluded that costs of imprisonment and supervision under Sec. 5E1.2(i) may be fined only if a punitive fine has been assessed under Sec. 5E1.2(a).3

In United States v. Labat, 915 F.2d 603, 606-07 (10th Cir.1990), the court opined that a fundamental reason rendered the fine imposed pursuant to Sec. 5E1.2(i) invalid. Relying on the clear language of Sec. 5E1.2(i), the court reasoned that "it makes no sense to waive the punitive fine [under Sec. 5E1.2(a) ] and impose the 'additional ' fine [under Sec. 5E1.2(i) ]." Id. at 607. The Labat court held that the district court misapplied the guidelines by assessing an additional fine of costs of imprisonment and supervision under Sec. 5E1.2(i) without first assessing a punitive fine under 5E1.2(a). Id.

In United States v. Corral, 964 F.2d 83, 84 (1st Cir.1992), citing Labat, the court held "that a district court may not impose a duty to pay for the costs of incarceration or supervised release if the defendant is indigent for purposes of a fine under Sentencing Guidelines section 5E1.2(a) [and thus no fine was imposed under that section]." Adopting the rationale of the courts in Labat and Corral, the court in United States v. Fair, 979 F.2d 1037, 1042 (5th Cir.1992), held that "it is a misapplication of the guidelines to impose an 'additional' cost of incarceration fine absent an initial punitive fine."

Section 5E1.2(i)'s plain language imposing costs of imprisonment and supervision as an additional fine amount supports the holding of the courts in Labat, Corral, and Fair that such additional fine may not be imposed unless a fine pursuant to Sec. 5E1.2(a) is also imposed.

In this case, the district court erred in fining Wells costs of imprisonment and supervision pursuant to Sec. 5E1.2(i), when it did not assess a punitive fine pursuant to Sec. 5E1.2(a). Wells urges that the fine be vacated as his remedy for the district court's misapplication of the guidelines. Wells does not claim, however, that he is indigent or that his pre-sentence investigation report demonstrates his inability to pay a fine. His sole argument is that the district court improperly assessed the fine under Sec. 5E1.2(i). Wells has offered no reason why the district court could not impose a fine in his case upon proper application of the guidelines. Thus, we remand Wells' case for resentencing so that the district court may apply U.S.S.G. Sec. 5E1.2 consistent with this opinion.

For the foregoing reasons the convictions of Norman, Sanders, and Wells; Sanders' sentence; and the district court's denial of Wells' motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255 are AFFIRMED. The fine imposed as part of Wells' sentence is VACATED, and his case is REMANDED for resentencing in accordance with this opinion.

AFFIRMED in part, VACATED in part, and REMANDED.