UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4959


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALLEN DAVID HILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00140-FL-1)


Submitted:   March 22, 2012                 Decided:   March 30, 2012


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Allen David Hill pleaded guilty to possession of a

firearm after sustaining a prior conviction punishable by a term

of imprisonment exceeding one year, in violation of 18 U.S.C. §

922(g)(1)    (2006).    The   district      court    sentenced   Hill    to   100

months of imprisonment and he now appeals.                  Appellate counsel

has filed a brief pursuant to Anders v. California, 

(1967), questioning whether the district court erred in upwardly

departing under the advisory Guidelines. Hill was informed of

his right to file a pro se supplemental brief but has not done

so. For the reasons that follow, we affirm Hill’s conviction,

but vacate the portion of the sentence pertaining to a fine, and

remand for resentencing.

            Counsel argues on appeal that the district court erred

in upwardly departing under the Guidelines on the ground that

Hill’s      criminal    history     category         under-represented         the

seriousness of his criminal history.                We review a sentence for

reasonableness, applying an abuse of discretion standard.                     Gall

v. United States, 

, 51 (2007); see also United States

v. Layton, 

, 335 (4th Cir. 2009).                In so doing, we

examine     the   sentence    for   “significant          procedural     error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to   consider     the   [18   U.S.C.]       §   3553(a)    [(2006)]     factors,


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selecting       a    sentence        based       on    clearly        erroneous      facts,     or

failing to adequately explain the chosen sentence.” 

.

               When reviewing a departure, we consider “whether the

sentencing       court       acted    reasonably             both    with    respect    to     its

decision    to       impose    such    a     sentence         and     with   respect    to     the

extent of the divergence from the sentencing range.”                                     United

States    v.    Hernandez-Villanueva,                 

,    123    (4th    Cir.

2007) (citation omitted).                    Pursuant to the Guidelines, “[i]f

reliable       information      indicates             that    the     defendant’s      criminal

history category substantially under-represents the seriousness

of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes, an upward departure may be

warranted.”            U.S.    Sentencing             Guidelines       Manual       (“USSG”)     §

A1.3(a)(1) (2011). The district court should consider several

factors    in       making    this     determination,               including     whether      the

defendant       incurred       prior       sentences           that    did    not    count     in

calculating the criminal history.                            USSG § 4A1.3(a)(2)(A). We

have   thoroughly        reviewed          the    record        and     conclude      that     the

district       court    did    not     err       in    upwardly        departing      from     the

Guidelines range based on Hill’s criminal history.

               Although not raised by counsel, however, we find that

the district court plainly erred in imposing a $4000 fine in

this case.          As Hill did not object to the imposition of the fine


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in the district court, we review this issue for plain error.

See Fed. R. Crim. P. 52(b); United States v. Olano, 

, 731-32 (1993).            To meet this standard, the record must

confirm that there was error, that was plain, and that affected

Hill’s substantial rights.            

if plain error

occurred, this court will not exercise discretion to correct the

error    “unless      the    error    seriously       affect[s]   the    fairness,

integrity      or   public    reputation       of   judicial   proceedings.”     

marks and citation omitted).

            Under the Guidelines, a district court must impose a

fine except where the defendant establishes that he is unable to

pay and is not likely to become able to pay a fine.                         USSG §

5E1.2(A).       A district court must consider several factors in

deciding whether to impose a fine, including the defendant’s

income, earning capacity, and financial resources; the burden

that the fine will impose on the defendant or any dependents;

any loss to victims of the offense; whether restitution has been

ordered; the need to deprive the defendant of illegally obtained

gains;   and    the   costs    to    the   government     of   incarceration.     18

U.S.C. § 3572(a) (2006); see United States v. Castner, 

, 1277 (4th Cir. 1995) (discussing factors). We have held

“that the district court must make factual findings with respect

to applicable section 3572 factors, so that there can be a basis

from    which   to    review   whether      the     district   court    abused   its


                                           4
discretion in assessing a fine.”                       United States v. Walker, 

, 492 (4th Cir. 1994). “A district court may satisfy

these     requirements       if      it     adopts      a     defendant’s       presentence

investigation         report      (PSR)      that      contains       adequate        factual

findings      to   allow     effective       appellate         review    of     the   fine.”

(citation omitted).                            “Otherwise, the

district court must set forth specifically its findings of fact

on the factors set forth in 18 U.S.C. § 3572(a).”                           United States

v.     Aramony,    

,    665       (4th    Cir.     1999)    (citation

omitted).

              While    the     district       court         adopted   Hill’s     PSR,     the

factual findings in the report did not support the imposition of

a $4000 fine.         The probation officer noted that Hill had limited

education, no history of employment, no assets, resources, or

income, and could only pay a reduced fine of up to $2900 during

imprisonment and after release from incarceration. The district

court failed to address the probation officer’s findings with

respect to Hill's ability to pay a fine and failed to discuss

the § 3572 factors. See United States v. Cox, 

, *3

(4th Cir. Jan. 4, 2012) (unpublished).                          We therefore conclude

that    the   district       court    erred       in    imposing      the   fine      without

making the requisite findings. We further conclude that this

error was plain and that it affected Hill’s substantial rights.

Accordingly, we vacate the order imposing a fine and remand for


                                              5
proceedings consistent with this opinion.

            We have examined the entire record in this case in

accordance with the requirements of Anders and have found no

other meritorious issues for appeal.             We therefore affirm Hill’s

conviction, but vacate the sentence as to the order of a fine

and remand to the district court for resentencing. We also deny

counsel’s motion to withdraw.            This court requires that counsel

inform Hill, in writing, of the right to petition the Supreme

Court of the United States for further review. If Hill requests

that   a   petition   be   filed,     but    counsel   believes    that   such   a

petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Hill. We dispense with

oral   argument   because       the    facts   and     legal    contentions    are

adequately    presented    in    the    materials      before    the   court   and

argument would not aid in the decisional process.



                                                               AFFIRMED IN PART,
                                                                VACATED IN PART,
                                                                    AND REMANDED




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