United States v. Prezioso ( 1993 )

March 30, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1898
UNITED STATES OF AMERICA,
Appellee,
v.
GABRIEL PREZIOSO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
John F. Cicilline for appellant.
Margaret E. Curran, Assistant United States Attorney,
Lincoln C. Almond, United States Attorney, and Lawrence D.
Gaynor, Assistant United States Attorney, were on brief for
appellee.
March 30, 1993
TORRUELLA, Circuit Judge. This appeal arises out of
the calculation of appellant's sentence under the United States
Sentencing Guidelines ("U.S.S.G."). Appellant contends that the
district court erred in enhancing his sentence under U.S.S.G.
4A1.1(d) based on an outstanding fine for a previous offense.
Because we agree with the district court that the enhancement was
warranted in this case, we affirm.
THE FACTS
Appellant pled guilty to unlawful possession of a
firearm by a convicted felon in violation of 18 U.S.C.
922(g)(1). The police found the firearm while searching
appellant's home for evidence of illegal gambling. Appellant had
several prior felony convictions for gambling. At the time of
the search, appellant still owed a $5000 fine for one of these
convictions.
The presentence report for the present conviction set
the base offense level at 12, but subtracted two levels for
acceptance of responsibility. The report then made two
adjustments for criminal history. First, the report added two
levels for appellant's prior state gambling convictions pursuant
to U.S.S.G. 4A1.1. Second, the report added two levels
pursuant to U.S.S.G. 4A1.1 because appellant was under a
criminal justice sentence, the unpaid fine, for a prior
conviction when he committed the present offense. These two
adjustments placed appellant at criminal history level III, which
together with the base offense level of 10, yielded an applicable
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range of 10-16 months.
Between the time of offense and the time of sentencing,
the base offense level for the felon in possession crime rose by
two levels. In such a situation, it is proper to apply the
sentencing guidelines applicable at the time of offense, rather
than the normally applicable guidelines at the time of
sentencing, in order to avoid violations of the Ex Post Facto
Clause of the Constitution. Id. 1B1.11. The report thus
relied on the guidelines as they stood at the time of the
offense, not at the time of sentencing.
Appellant objected to the calculation of criminal
history on two grounds. First, he argued that the unpaid fine
was not a criminal justice sentence for the purposes of U.S.S.G.
4A1.1(d). Appellant relied on an amendment to the commentary
that became effective in November 1991 as support; he argued that
this amendment should have retroactive effect. Second, he
contended that the calculation violated the Equal Protection
Clause, in that treating a fine as a criminal justice sentence
disfavors indigent defendants who cannot pay fines quickly. The
district court judge disagreed on each argument, and sentenced
appellant to 13 months imprisonment, a $5,000 fine, and 2 years
of supervised release. Appellant revives his objection to the
criminal history calculation in this appeal.
LEGAL ANALYSIS
In 1990, we decided United States v. Gallego, 905 F.2d
482 (1st Cir. 1990). There we held that "the sentencing
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guidelines are perfectly clear that a fine is a 'criminal justice
sentence'" and therefore triggers the U.S.S.G. 4A1.1(d)
enhancement. Id. at 483. In November, 1991, a so-called
clarifying amendment to the application notes to that section was
added, stating that "a sentence to pay a fine, by itself," would
not trigger the enhancement. We must determine whether, in light
of our circuit precedent to the contrary, we should apply the
1991 amendment retroactively to the 1990 version of the
guidelines in this case.
At the outset, we note that we normally apply
amendments retroactively only if they clarify a guideline, but
not if they substantively change a guideline. Isabel v. United
States, 980 F.2d 60, 62 (1st Cir. 1992). The first step in our
analysis, then, is to determine whether the amendment constitutes
a clarification or a substantive change. We recognized in Isabel
that these categories were unclear, id., and as is usually the
case, there are factors supporting either side.
On the one hand, the United States Sentencing
Commission labeled the amendment as a clarification of the
meaning of a criminal justice sentence. U.S.S.G. App. C at 206,
208. Because the 1990 guideline did not say explicitly that
fines were or were not criminal justice sentences, this
characterization does not contravene any specific provision of
the guidelines themselves.
On the other hand, our holding in Gallego weighs in
favor of characterizing the amendment as a substantive change.
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Given that holding, the amendment alters the guideline as
interpreted by the First Circuit. Furthermore, any amendment
that is inconsistent with the clear meaning results in a
substantive change, regardless of the Sentencing Commission's
characterization. United States v. Ruiz Batista, 956 F.2d 351,
353 (1st Cir.) ("if there was no ambiguity . . . the Commission
could not change [the] meaning retroactively by using a magic
word, clarification"), cert. denied, 113 S. Ct. 105 (1992). In
Gallego we held it to be "perfectly clear" that a fine is a
criminal justice sentence, as that term is used in U.S.S.G.
4A1.1. The contrary amendment therefore would seem to represent
a substantive change, rather than a clarification.
Given our holding in Gallego, we rule that the
amendment was not a clarification. Rather, the amendment
presented a change in the meaning of a clear and unambiguous
guideline. As the amendment was not a clarification, it is not
entitled to retroactive effect. Accordingly, the district court
did not err in sentencing appellant.1
We turn now to appellant's constitutional claims.
Appellant insists that he is being penalized because he was
paying his fine incrementally according to a state established
schedule. According to appellant, the Fourteenth Amendment does
not permit criminal penalties due to a defendant's inability to
pay a fine.
1 We will, of course, apply the commentary in future cases not
involving retroactivity.
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We disagree with appellant's analysis. He is not being
penalized for nonpayment of a fine. Rather, he is being
penalized because that fine is not yet due and payable, and
therefore appellant is still subject to a criminal justice
sentence. We have rejected similar claims on these very grounds.
Gallego, 905 F.2d at 483 n.2. Furthermore, appellant is not an
indigent, and therefore is not entitled to the protections he
claims. See Bearden v. Georgia, 461 U.S. 660, 664-69 (1983)
(distinguishing between indigents and nonindigents for
constitutional purposes). Appellant's sentence invokes no
constitutional concerns.
We cannot conclude without a respectful observation
regarding what we perceive to be a too often exercised
prerogative by the Sentencing Commission, that of making
significant alterations to the guidelines commentary accompanied
by a suggestion that the alteration is a "clarification."
Considering the thin line separating substance from clarification
in this neural area of the law, we believe judicious restraint by
the Commission would not only avoid unnecessary litigation and
the possible violation of constitutional rights, but would add to
the credibility of its action.
The sentence is affirmed.
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