West v. United ( 1992 )


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  • USCA1 Opinion




    September 29, 1992 [NOT FOR PUBLICATION]







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    No. 92-1108




    RICHARD ALAN WEST,

    Plaintiff, Appellant,

    v.

    UNITED STATES OF AMERICA,

    Defendant, Appellee.


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    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Jose Antonio Fuste, U.S. District Judge]
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    Before

    Breyer, Chief Judge,
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    Campbell, Senior Circuit Judge,
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    and Cyr, Circuit Judge.
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    Richard Alan West on brief pro se.
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    Richard S. Cohen, United States Attorney and F. Mark
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    Terison, Assistant United States Attorney, on brief for appellee.
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    Per Curiam. Petitioner appeals denial of his motion to
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    set aside, vacate, or correct his sentence pursuant to 28

    U.S.C. 2255. We affirm the district court's decision

    dismissing his petition.

    Petitioner was convicted by a jury in August, 1989 on

    three counts of distributing cocaine. He was acquitted of a

    fourth count of conspiracy. In November, 1989, he was

    sentenced to concurrent sentences of fifty-five months on

    each of the three counts, followed by five years' supervised

    release. He was also fined $2500 per count (total $7500), to

    be paid in installments during the five year period of

    supervised release. Joined by his three co-defendants,

    petitioner appealed his sentence. This court affirmed the

    district court's judgment, and the Supreme Court denied

    certiorari. United States v. Zuleta-Alvarez, 922 F.2d 33
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    (1st Cir. 1990), cert. denied, 111 S. Ct. 2039 (1991).
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    Petitioner filed the instant motion, pro se, in October,

    1991, alleging six new reasons for relief from his sentence.

    The United States Attorney was ordered to answer, and the

    motion was referred to the original sentencing judge. In a

    lengthy and detailed opinion issued in January, 1992, the

    sentencing judge dismissed each of petitioner's six

    assignments of error.

    On this appeal petitioner reasserts only one of the six

    grounds he raised below. He claims that the sentencing judge



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    relied upon improper information in finding petitioner

    capable of paying the $7500 minimum fine prescribed by the

    Guidelines. Petitioner argues that the sentencing judge

    infringed upon petitioner's Fifth Amendment privilege against

    self-incrimination by accepting the probation officer's

    response to petitioner's objection to paragraph 126 of the

    presentence report. Paragraph 126 of the presentence report

    concluded that because petitioner failed to complete a

    required financial statement, he was presumed able to pay the

    minimum fine. Petitioner objected that he had filed a

    financial statement when arrested, and his situation had not

    changed since then. The probation officer's response was

    that the post-conviction financial statement sought

    significantly more specific information than the one

    completed on arrest, and that petitioner's earlier statement

    "makes no accounting of his drug sales." Petitioner claims

    that the district court's acceptance of the last-quoted

    language violated petitioner's Fifth Amendment rights.

    The district court responded to petitioner's argument as

    follows:

    In adopting the probation officer's response to
    West's objection ... we simply recognized that
    there was not sufficient evidence to determine
    whether the fine should be waived or reduced. In
    his objection, defendant insisted on standing by
    his earlier financial affidavit sworn at the time
    of his arrest. It was not West's failure to come
    forward with an accounting of his ill-gotten gain,
    but rather his refusal to come forward with any
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    accounting that led the court to apply the fine


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    mandated by section 5E1.2(a) and not find a basis
    for the exception of section 5E1.2(f).


    Thus petitioner's Fifth Amendment argument was shown to

    be baseless. On appeal here petitioner claims that reliance

    on his Fifth Amendment privilege was the reason for his

    failure to submit the requested financial statement in the

    first place. This argument does not appear to have been

    clearly raised below. But in any event we cannot credit it

    in light of the record before us. Taken as an assertion of

    the privilege, it is about 3 years too late and it is plainly

    contradicted by the objection petitioner made to the report

    at the time.

    Petitioner also argues that the district court had

    insufficient evidence upon which to determine his ability to

    pay. This argument is based on a misunderstanding of the

    guidelines. Under 5E1.2(a) the district court was required

    to impose a fine unless petitioner established "that he is

    unable to pay and is not likely to become able to pay any

    fine." U.S.S.G. 5E1.2(a). Accord United States v.
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    Marquez, 941 F.2d 60, 65-66 (2d Cir. 1991); United States v.
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    Rafferty, 911 F.2d 227, 232-33 (9th Cir. 1990); United States
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    v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 492 U.S.
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    910 (1989) (applying similarly-worded successor guidelines).

    But see United States v. Walker, 900 F.2d 1201, 1206 n.5 (8th
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    Cir. 1990). Since petitioner failed to meet his burden of



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    producing evidence demonstrating an inability to pay, the

    district court was required to impose at least the minimum

    fine.

    Petitioner's final argument is that the sentencing court

    did not make specific findings concerning the factors

    required to be considered under 18 U.S.C. 3572. Petitioner

    urges us to rule on this argument without regard to the

    district court's current explanation for the fine it imposed.

    But we see no reason to avoid the district court's current

    explanation. On the contrary, as the Supreme Court has

    indicated, the sentencing court may properly rely on its own

    memory in ruling on a 2255 motion. Blackledge v. Allison,
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    431 U.S. 63, 74 n.4 (1977).

    Our own reading of the record, including the court's

    explanation of its sentencing decision on the instant motion,

    convinces us that it had sufficient evidence and considered

    all relevant factors. As we observed in response to a

    similar argument made under an almost identically-worded

    statute, 18 U.S.C. 3622(a) (now repealed), "we will not

    presume that the district court declined to consider the

    relevant ... evidence." United States v. Wilfred Am. Educ.
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    Corp., 953 F.2d 717 (1st Cir. 1992). The district court was
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    not required to write out its findings on each and every

    factor, so long as it considered the relevant factors and the





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    record was otherwise adequate for appellate review. Id. at
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    719-20.1

    Petitioner's second point on this appeal, challenging

    the statutory authority of the Sentencing Commission to

    promulgate certain provisions of the guidelines, was not

    raised below. Accordingly it will not be considered for the

    first time on appeal. United States v. Pilgrim Market Corp.,
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    944 F.2d 14, 21 (1st Cir. 1991); Hernandez-Hernandez v.
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    United States, 904 F.2d 758, 764 (1st Cir. 1990).
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    For these reasons, the district court's order dismissing

    the petition is affirmed.
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    1. The record shows that petitioner is 37 years old,
    healthy, trained as an electrician's helper and welder. He
    offered nothing to contradict the conclusion that he had a
    future ability to earn an income sufficient to repay the
    minimum fine in installments during his five years on
    supervised release.

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