United States v. Cordova Gonzalez ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]





                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 96-1146



                                    UNITED STATES,



                                      Appellee,



                                          v.



                              ANTONIO CORDOVA GONZALEZ,

                             a/k/a POTI, a/k/a EL VIEJO,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                 ____________________



                                        Before



                               Torruella, Chief Judge,
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                     Coffin and Campbell, Senior Circuit Judges.
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            Carlos Vazquez Alvara,  with whom Benicio Sanchez Rivera,  Federal
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        Public Defender, and  Gustavo A. Gelpi, Jr.,  Assistant Federal Public
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        Defender, were on brief for appellant.

            Nelson Perez  Sosa, Assistant  United States  Attorney, with  whom
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        Guillermo Gil, United States Attorney, Jose A. Quiles Espinosa, Senior
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        Litigation  Counsel and  Edwin  O. Vazquez  Berrios, Assistant  United
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        States Attorney, were on brief for appellee.



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                                  November 19, 1996



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                      Per  Curiam.   In  his  appeal  from his  sentence,
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            appellant contends  that the  court committed plain  error in



            imposing a  $15,000 fine.   There  was no  plain error.   The



            presentence  investigation report, while it did not recommend



            a fine because  of defendant's presumed inability  to pay it,



            also  indicated that  defendant had  assets of  approximately



            $21,500 and, in addition,  any moneys that he may  receive if



            his  ex-wife's bankruptcy case  were resolved.   We have held



            that, under the relevant  Guidelines, "a fine is the  rule



            and it is the defendant's burden to demonstrate that his case



            is an exception."  United States v. Savoie, 985 F.2d 612, 620
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            (1st   Cir.  1993);   see  also   United   States  Sentencing
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            Commission, Guidelines  Manual,   5E1.2(a) (Nov.  1995).  The
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            amount  the court  imposed was  the minimum  fine within  the



            applicable guideline range.  In the present circumstances, we



            cannot  say  the  district   court's  imposition  of  a  fine



            constituted plain  error,  as we  would need  to conclude  in



            order  to  overturn   the  district  court's   action,  given



            appellant's failure to object.   See United States  v. Dietz,
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            950 F.2d 50, 55  (1st Cir. 1991) ("We have  repeatedly ruled,



            in  connection with  sentencing  as in  other contexts,  that



            arguments not seasonably addressed to the trial court may not



            be raised  for the first time in an appellate venue.")  If it



            turns out that appellant should truly lack the  assets needed



            to pay  the fine when required  to do so, he  can, of course,







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            offer his inability to pay as an excuse then.   See 18 U.S.C.
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              3569  (1985 & Supp. 1996); see also Tate v. Short, 401 U.S.
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            395, 398 (1971).



                      Affirmed.
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