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USCA1 Opinion
September 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2430
UNITED STATES,
Appellee,
v.
NERIO ZULETA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Nerio Zuleta on brief pro se.
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Edwin J. Gale, United States Attorney, and Zechariah Chafee,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Nerio Zuleta pleaded guilty
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to two counts of an indictment charging him with possession
with intent to distribute 500 grams or more of cocaine and
conspiracy to possess with intent to distribute 500 grams or
more of cocaine all in violation of 21 U.S.C. 841(a)(1) &
(b)(1)(B), 846 and 18 U.S.C. 2. Appellant was sentenced to
an 87-month term of imprisonment, a supervised release term
of five years, a fine of $50,000 and was required to pay
$5,799.60 -- the cost of his supervised release. On direct
appeal, he challenged only a two-level enhancement to his
base offense level for his role as a "supervisor" in the
conspiracy. We affirmed his conviction in an unpublished
opinion.
Appellant then filed a motion, under 28 U.S.C.
2255, to remit or reduce his fine, alleging that he was
indigent and that prison officials would remove appellant
from rehabilitative activities if he did not pay the fine.
The district court denied the motion. On appeal, appellant
first alleges that the district court failed to consider the
factors listed in 18 U.S.C. 3572(a) prior to making its
determination that appellant had the financial ability to pay
a fine. In addition, appellant argues that the court did not
explicitly discuss or provide support for its imposition of
the fine. Next, appellant argues that the provision
requiring the court to impose a fine to pay the government
the cost of his supervised release is not authorized by the
Sentencing Reform Act or the terms of 18 U.S.C. 3553(a).
Rather, he argues, the Commission was granted the power only
to study the question.
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Because appellant failed to raise the claim
concerning his fine on direct appeal, he faces a
significantly higher hurdle to obtaining relief. That is,
such nonconstitutional claims may not be presented for the
first time in a 2255 motion unless the alleged errors
amount to "``a fundamental defect which inherently results in
a complete miscarriage of justice.'" Davis v. United States,
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417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368
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U.S. 424, 428 (1962)).
1. The $50,000 fine.
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Section 3572(a) lists the factors a court must
consider in determining whether to impose a fine and the
amount of the fine:
(1) the defendant's income, earning
capacity, and financial resources;
(2) the burden that the fine will
impose upon the defendant [or] any person
who is financially dependent on the
defendant . . . relative to the burden
that alternative punishments wold impose;
(3) any pecuniary loss inflicted upon
others as a result of the offense;
(4) whether restitution is ordered or
made and the amount of such restitution;
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(5) the need to deprive the defendant
of illegally obtained gains from the
offenses. . . .
18 U.S.C. 3572(a).
Similarly, 5E1.2 of the United States Sentencing
Guidelines provides that "[t]he court shall impose a fine in
all cases, except where the defendant establishes that he is
unable to pay and is not likely to become able to pay any
fine." U.S.S.G. 5E1.2(a). The other factors listed in the
Guidelines relevant to the setting of a fine include the need
for the fine "to reflect the seriousness of the offense, . .
. to promote respect for the law, to provide just punishment
and to afford adequate deterrence. . . ." Id. 5E1.2(d)(1).
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We will not presume that the trial court failed to
consider the pertinent factors contained in 3752. See
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United States v. Wilfred Am. Educ. Corp., 953 F.2d 717, 719
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(1st Cir. 1992) (construing predecessor statute -- 18 U.S.C.
3622(a)). Nor is the district court required to make
"specific oral or written findings" relating to the
enumerated factors. See id. at 720; United States v.
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Hagmann, 950 F.2d 175, 185 (5th Cir. 1991) (considering
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3572(a)), cert. denied, 113 S. Ct. 108 (1992). Finally, the
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burden is on appellant to establish his inability to pay a
fine. See United States v. Matovsky, 935 F.2d 719, 722 (5th
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Cir. 1991); United States v. Perez, 871 F.2d 45, 48 (6th
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Cir.), cert. denied, 492 U.S. 910 (1989).
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Turning to the merits of appellant's claims, we
first note that the district court had before it financial
information included in the Presentence Report (PSI). This
information indicated that, as of November 30, 1990 (prior to
his arrest), appellant had an income of $1,000 per month and
expenses of $694 per month.1 Appellant points to another
part of the PSI which states that he has no "significant
assets." The court plainly considered this factor in its
decision to impose a fine. At the sentencing hearing, the
court stated:
I recognize that the pre-sentence report
indicates that you do not have
significant assets but, frankly, it's
difficult for me to understand or accept
that someone who has been dealing in the
amounts of cocaine that you have been
involved with doesn't have those assets.
That's a matter for you to take up, I
suppose, with the Bureau of Prisons when
the time comes.
Transcript of Sentencing Hearing, at 30.
We find that there was no defect in the sentencing
process which resulted in a "complete miscarriage of
justice." Indeed, the court acted well within its discretion
in imposing the $50,000 fine, especially given appellant's
role as a supervisor in the conspiracy and the need to make
sure he does not retain any illegally obtained gains. The
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1. In the financial statement submitted by appellant with
his 2255 motion, he stated that prior to his arrest, he had
worked in a factory for $800 per month.
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fact that the court imposed a fine that is only a fraction of
the maximum of $4,000,000 is further evidence that the court
considered appellant's ability to pay in setting the fine.
Finally, we do not agree with appellant that his
current financial state should have precluded the imposition
of any fine. The reference in 3572(a)(1) to "earning
capacity" makes plain that appellant's future ability to pay
is part of the equation. See Hagmann, 950 F.2d at 185-86 (a
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defendant's indigency at the time the fine is ordered does
not preclude imposition of a fine); Perez, 871 F.2d at 48
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(current assets do not determine whether defendant should be
excused from paying a fine mandated by the Sentencing
Guidelines). As we noted, supra, appellant was employed
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prior to his arrest and had a steady income which exceeded
his expenses. Should this prediction prove wrong and should
the government seek to punish or imprison appellant for non-
payment, there are administrative remedies to which he can
turn. See, e.g., United States v. Levy, 897 F.2d 596, 598
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(1st Cir. 1990); Santiago v. United States, 889 F.2d 371,
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373-74 (1st Cir. 1989) (per curiam).
2. Cost of supervised release.
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Section 5E1.2(i) provides that "the court shall
impose an additional fine amount that is at least sufficient
to pay the costs to the government of any imprisonment,
probation, or supervised release ordered." We reject
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appellant's claim that justice has obviously miscarried here
because the Sentencing Reform Act does not authorize this
fine. Respectable authority holds to the contrary. See
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United States v. Turner, No. 93-1148, 1993 U.S. App. LEXIS
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17472 (7th Cir. July 14, 1993) (fine for cost of imprisonment
authorized by Sentencing Reform Act); Hagmann, 950 F.2d at
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186 (fine derived from fine table under 5E1.2(b) and the
additional fine required under 5E1.2(i) both realize the
goals set forth in 18 U.S.C. 3553(a)(2)). Although
appellant cites to a case in which the Court of Appeals for
the Third Circuit held that the Act did not authorize the
fines provided for in 5E1.2(i), see United States v.
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Spiropoulos, 976 F.2d 155 (3rd Cir. 1992), we do not agree
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with the reasoning contained therein.
For the foregoing reasons, the judgment of the
district court is affirmed.
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Document Info
Docket Number： 92-2430
Filed Date： 12/8/1993
Precedential Status： Precedential
Modified Date： 9/21/2015