United States v. Impemba ( 1994 )


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  • USCA1 Opinion









    June 13, 1994
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ___________________




    No. 93-1957


    UNITED STATES,
    Appellee,

    v.

    GUIDO IMPEMBA,
    Defendant, Appellant.

    ____________________



    ERRATA SHEET

    The opinion of this Court issued on April 29, 1994 is
    amended as follows:



    In the two sentences beginning at the bottom of page 3 and
    carrying over to the top of page 4, the following language shall
    be deleted:

    "it is doubtful that the Maine court possessed
    jurisdiction inasmuch as Impemba was in custody in
    Wisconsin. Moreover,"

    These two sentences shall be combined into one sentence, reading
    as follows: "Alternatively, to the extent his motion is viewed as
    a habeas petition under 28 U.S.C. 2255, Impemba arguably lacked
    standing to pursue such relief prior to expiration of his
    'noncontingent' prison term and/or exhaustion of his
    administrative remedies."


















    April 29, 1994 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________


    No. 93-1957

    UNITED STATES,

    Appellee,

    v.

    GUIDO IMPEMBA,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Gene Carter, U.S. District Judge]
    ___________________

    ____________________

    Before

    Torruella, Selya and Stahl,
    Circuit Judges.
    ______________

    ____________________

    John C. McBride and McBride and Associates on brief for
    _________________ _________________________
    appellant.
    Jay P. McCloskey, United States Attorney, and Margaret D.
    __________________ ____________
    McGaughey, Assistant United States Attorney, on brief for appellee.
    _________


    ____________________


    ____________________






















    Per Curiam. Guido Impemba appeals from a district court
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    order denying his motion to vacate a pair of criminal fines

    imposed nearly ten years ago. For the following reasons, we

    summarily affirm under Loc. R. 27.1.

    I.

    In 1983 and 1984, Impemba participated in a wide-ranging

    scheme to transport approximately twenty-five tons of

    marijuana from Colombia to Maine aboard the freighter

    "Adina." He was later convicted on two counts of (1)

    conspiracy to possess marijuana with intent to distribute and

    (2) conspiracy to import marijuana. At sentencing, held on

    December 20, 1984,1 Impemba received a fifteen-year prison

    term and a $50,000 committed fine on Count I, and a

    concurrent five-year prison term and a concurrent $15,000

    committed fine on Count II. This court thereafter affirmed

    his conviction (along with those of six of his codefendants).

    See United States v. Cresta, 825 F.2d 538 (1st Cir. 1987),
    ___ _____________ ______

    cert. denied, 486 U.S. 1042 (1988).
    ____________

    In March 1993, Impemba filed the instant motion to

    vacate his fines in Maine district court. He there

    complained that the sentencing court had imposed the fines

    without considering his financial status. He further alleged

    that he had been indigent in 1984 and had remained so ever

    since--with the result that, because of the "committed"

    nature of the fines, he was faced with "extended

    imprisonment" due solely to his indigency, in violation of

    constitutional guarantees. The district judge summarily


    ____________________

    1. The government's brief contains mistaken references to
    1985 as the year of sentencing.















    denied this motion shortly after its filing. Five months

    later, in an independent action in the judicial district in

    which he was incarcerated, Impemba obtained relief from the

    "committed" nature of his fines. Based on his oath of

    indigency, a magistrate-judge sitting in the Western District

    of Wisconsin relieved him "from payment of the committed fine

    as a condition of his release from prison." This order made

    clear, however, that Impemba remained obligated to pay the

    fines and that the government could pursue civil remedies to

    obtain payment. While this action has mooted part of his

    motion to vacate, Impemba on appeal continues to pursue his

    challenge to the validity of the fines themselves.

    II.

    Impemba has not explained, and the government has

    properly questioned, the jurisdictional basis for his

    requested relief.2 For example, to the extent his motion is

    viewed as one to correct sentence under former Fed. R. Crim.

    P. 35(a), it was untimely. As he is contending not that the

    sentence was "illegal," but rather that it was "imposed in an

    illegal manner," any such motion was subject to the 120-day

    filing period specified in Rule 35(b). Alternatively, to the

    extent his motion is viewed as a habeas petition under 28

    U.S.C. 2255, Impemba arguably lacked standing to pursue


    ____________________

    2. Impemba's brief contains no statement of subject matter
    and appellate jurisdiction, in violation of Fed. R. App. P.
    28(a)(2).

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    such relief prior to expiration of his "noncontingent" prison

    term and/or exhaustion of his administrative remedies.

    United States v. Levy, 897 F.2d 596, 598 (1st Cir. 1990). In
    _____________ ____

    any event, any such request would now be moot in light of the

    Wisconsin court's action. Finally, to the extent his motion

    is viewed as a request for remission under former 18 U.S.C.

    3573, the action was plainly unauthorized. As explained in

    United States v. Linker, 920 F.2d 1, 1-2 (7th Cir. 1990), a
    ______________ ______

    version of this statute permitting a defendant to seek

    remission of a fine was in existence for only six weeks in

    1987. A newer version, which took effect on December 12,

    1987 and which applies to all fines "irrespective of the date

    of imposition," permits such relief only upon "petition of

    the Government."

    Yet we need not resolve these matters (nor need we

    address the government's related contention that Impemba

    waived the issue by failing to raise it on direct appeal),

    inasmuch as the motion to vacate is obviously lacking in

    merit. Impemba principally relies on a former version of 18

    U.S.C. 3565(a)(1) which provided as follows:

    If the court finds by a preponderance of the
    ___________________________________________________
    information relied upon in imposing sentence that
    ___________________________________________________
    the defendant has the present ability to pay a fine
    ___________________________________________________
    or penalty, the judgment may direct imprisonment
    ___________________________________________________
    until the fine or penalty is paid, and the issue of
    _________________________________
    execution on the judgment shall not discharge the
    defendant from imprisonment until the amount of the
    judgment is paid.




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    (Emphasis added.) The crux of his argument is that the

    sentencing court lacked any information to support a

    conclusion that he had the "present ability" to pay the fines

    in question. This contention fails for the simple reason

    that the underscored language did not apply to Impemba's

    case. Added by the Criminal Fine Enforcement Act of 1984,

    Pub. L. No. 98-596, 2(2), 98 Stat. 3134, this language

    applied only to "offenses committed after December 31, 1984."

    Id. 10, 98 Stat. 3138. The version of 3565(a)(1) that
    ___

    governed Impemba's case contained no requirement that

    imposition of a committed fine be dependent on a finding of

    "present ability" to pay.3

    Under the law applicable to Impemba, therefore, the

    sentencing court was under no statutory obligation to

    consider ability to pay. Indeed, before the Criminal Fine

    Enforcement Act (and thereafter the Sentencing Guidelines)


    ____________________

    3. This earlier version read simply as follows:

    Where the judgment directs imprisonment until the
    fine or penalty imposed is paid, the issue of
    execution on the judgment shall not discharge the
    defendant from imprisonment until the amount of the
    judgment is paid.

    Impemba makes reference to two other statutes that
    specify various factors (including ability to pay) that a
    court must consider in imposing a fine. See 18 U.S.C.
    ___
    3622(a), 3572(a). As he acknowledges, however, neither of
    these applied to his case. Section 3622 was applicable only
    to offenses committed after December 31, 1984. See, e.g.,
    ___ ____
    United States v. Wilfred Amer. Educ. Corp., 953 F.2d 717, 719
    _____________ _________________________
    n.1 (1st Cir. 1992). Section 3572 took effect on November 1,
    1987.

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    took effect, a sentencing court had virtually unreviewable

    discretion in imposing a sentence within the statutory

    maximum. See, e.g., United States v. Dominguez, 951 F.2d
    ___ ____ _____________ _________

    412, 416 (1st Cir. 1991) (summarily rejecting allegedly

    indigent defendant's challenge to pre-Guidelines fine), cert.
    _____

    denied, 112 S. Ct. 1960 (1992). A "narrow exception" to this
    ______

    rule permitted the overturning of a sentence "where the facts

    indicate that the court below adopted a rigid, mechanistic

    approach to sentencing, and failed to consider the individual

    mitigating circumstances of each defendant." United States
    _____________

    v. Jimenez-Rivera, 842 F.2d 545, 548 (1st Cir.), cert.
    ______________ _____

    denied, 487 U.S. 1223 (1988). Yet the sentence here is
    ______

    immune from any such challenge. The district court properly

    considered the individual circumstances presented--observing,

    for example, that Impemba was "one of the principal

    representatives of the group anticipating profit in

    substantial amounts," and later rejecting the government's

    recommendation that consecutive sentences be imposed. We

    also note that Impemba himself was largely responsible for

    the absence of precise financial information--having refused

    (apparently on advice of counsel) to submit a financial

    statement to the probation department in the belief that such

    request was an invasion of privacy.

    Affirmed.
    ________





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