Salazar v. United States ( 1993 )

April 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1207
ADAN SALAZAR,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Adan Salazar on brief pro se.
Per Curiam. Adan Salazar appeals the district
court's denial of his request to vacate or provide for
installment payments of a stand committed fine imposed on him
in 1987 after he pled guilty to conspiring to distribute
cocaine and possessing with intent to distribute cocaine. We
affirm.
In a letter, Salazar asked the district court to
vacate his committed fine, or to permit its payment in
installments while he was on parole. He asked for relief
from the fine because he had been scheduled to be released on
parole, but his parole had been made contingent on the fine
being paid or "otherwise disposed of by law." Salazar told
the court that, given his earning power while incarcerated,
he could not pay the fine. Given his allegedly poor health,
he also suggested that the fine "flirt[ed] on the rim of the
Eighth Amendment ban on Cruel or Unusual Punishment."
The district court treated Salazar's letter as a
motion to correct a sentence under Fed. R. Crim. P. 35 and
denied it as untimely. The version of Rule 35 applicable to
Salazar, whose offenses were committed in 1984, provided that
a court could correct an "illegal sentence" at any time, but
that it could correct a sentence "imposed in an illegal
manner" only within 120 days after the date of sentencing or
within 120 days after the date of the last appellate
disposition upholding the judgment of conviction. The court
found that Salazar's fine was not an illegal sentence since
it was not "ambiguous, contradictory, incomplete, uncertain,
or unauthorized", nor was it "in excess of the statutory
maximum allowable for the charges [or] in conflict with any
applicable law." Given Salazar's allegation that "proper
consideration [had] not [been] given to his ability to pay
the fine," the court concluded that Salazar was challenging
the manner in which his sentence had been imposed. Because
his challenge had not been brought within the requisite 120
days, it denied his request for relief.
In its decision, the district court determined a
purely legal question -- whether the fine was an "illegal
sentence" which could be corrected at any time under Rule
35(a). Given Salazar's argument to the court that presently
he could not pay the fine and the court's position that the
fine had been within the statutory maximum and not contrary
to other law when imposed, we interpret the court's opinion
to signify that a fine, which was legal when imposed, does
not become illegal simply because the defendant cannot pay
the fine when it comes due. The only case on point which we
have found supports the court's conclusion. In United States
v. Blanton, 739 F.2d 209 (6th Cir. 1984), the Sixth Circuit
considered whether a district court could vacate a fine as an
"illegal sentence" where the defendant had the means to pay
the fine at the time it was imposed, but did not at the time
the fine was due. It found that the defendant's subsequent
inability to pay the fine would not render the fine an
illegal sentence for Rule 35 purposes since, when imposed,
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the fine had been authorized by "the judgment of
conviction."1 Id. at 211-12.
Although the district court's decision has support
in precedent, we would not confine the analysis to Rule 35.
We think that Salazar's request could also have been treated
as a 28 U.S.C. 2255 motion, which is not subject to Rule
35's time limitations. See, e.g., United States v. Santora,
711 F.2d 41, 42 (5th Cir. 1983) ("[m]indful of the liberality
accorded pro se filings, we . . . construe [defendant's] ill-
styled Rule 35 pleading as a request for relief under
2255"). Accordingly, we proceed to resolve the merits of
Salazar's claim.
Salazar seems most concerned with the committed
nature of his fine in light of his impending parole. To the
extent he believes that he will remain in prison until the
fine is paid, and that he will never obtain release because
1. In Blanton, the district court had determined that the
fine was an "illegal sentence" which could be corrected at
any time under Rule 35(a). Once the defendant had lost the
means to pay the fine, the court reasoned, it became illegal
under Supreme Court law forbidding the incarceration of
persons solely because they could not pay their committed
fine. But the Sixth Circuit noted that that law was
inapplicable since the defendant was not actually
incarcerated. Although Salazar is presently incarcerated,
the reasoning in the Blanton case applies nonetheless because
Salazar will not remain incarcerated if he cannot pay the
fine. If shown to be indigent, Salazar will be released from
prison. See 28 U.S.C. 3569 (a prisoner may obtain his
discharge without paying his committed fine by showing that
he is an indigent and by taking an oath to that effect).
Thus, Salazar's position is essentially the same as that of
the defendant in Blanton.
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his earning power in prison is too low to permit him to pay
the fine in his lifetime, he need not worry. Upon showing
that he is indigent, he may obtain his discharge even if he
has not paid his fine. See 28 U.S.C. 3569, supra footnote
1.
Salazar also appears to be alleging that the
committed portion of the fine was illegal at the time the
fine was imposed because he could not pay the fine at that
time. As a general matter, courts have long been regarded as
having the authority to impose committed fines. See United
States v. Estrada de Castillo, 549 F.2d 583, 585 (9th Cir.
1976) (Hufstedler, J., concurring specially). The only
qualification was that a prisoner could not be confined for
not paying a fine if it was his indigence alone that
prevented him from paying the fine. See Tate v. Short, 401
U.S. 395, 397-98 (1971) (equal protection violation to
confine a person solely because he did not have the means to
pay a fine); Williams v. Illinois, 399 U.S. 235, 240-41, 244
(1970) (equal protection violation to extend a person's
prison term solely because indigency made it impossible for
the person to pay a fine). Because defendants sentenced both
to a prison term and a committed fine could obtain a
discharge of the committed portion of the fine under 28
U.S.C. 3569 when their prison term ended, they have been
found to have no standing to challenge the committed portion
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of the fine on the basis of alleged indigence as of the time
the fine was imposed. See, e.g., United States v. Levy, 897
F.2d 597, 598 (1st Cir. 1989) (so holding and citing similar
cases from other circuits). Thus, Salazar's alleged
indigency at the time of sentencing provides no basis under
the Constitution for challenging his committed fine.
Nor was the district court required by statute to
consider Salazar's ability to pay the fine at sentencing.
Salazar's offenses were committed before December 31, 1984.
At that time, 18 U.S.C. 3565, relating to the collection
and payment of fines and penalties, did not require a
sentencing court to consider ability to pay in imposing a
fine. The Criminal Fine Enforcement Act of 1984 amended
section 3565 to permit the imposition of committed fines only
if the court found "by a preponderance of the information
relied upon in imposing sentence that the defendant has the
present ability to pay a fine or penalty." See 18 U.S.C.
3565(a)(1) (now repealed). But it applied only to offenses
committed after December 31, 1984. See Publ. L. 98-596,
10, 98 Stat. 3134, 3138. Likewise, 18 U.S.C. 3622 (now
repealed), which specifically required a sentencing court to
consider a defendant's "income, earning capacity, and
financial resources" before imposing a fine, applied only to
offenses committed after December 31, 1984. Id. Under the
law applicable to Salazar, therefore, the district court had
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no statutory obligation to consider Salazar's ability to pay.
See United States v. Wilfred American Educational Corp., 953
F.2d 717, 719 & n.1 (1st Cir. 1992) (summarily dismissing a
corporation's claim that imposition of the maximum statutory
fine was invalid under 18 U.S.C. 3622(a) because the
sentencing court had not considered its ability to pay the
fine since the conduct for which the fine had been imposed
had occurred before December 31, 1984).
Indeed, before the Criminal Fine Enforcement Act
(and thereafter the Sentencing Guidelines) became effective,
a district court had very broad discretion in imposing
sentences as long as they were within the statutory maximum,
and sentences within the statutory maximum were virtually
unreviewable on appeal. See H.R. Rep. No. 906, 98th Cong.,
2d Sess., 1984 U.S.C.C.A.N 5433 passim (commenting on the
changes the Criminal Fine Enforcement Act would make in a
sentencing judge's discretion, particularly respecting a
defendant's ability to pay); United States v. Dominguez, 951
F.2d 412, 416 (1st Cir. 1991) (on appeal, appellants
challenged a fine which was within the statutory maximum,
claiming that they were indigent; this court stated that
"[t]hat matter . . . is for the district court to take into
account. We cannot review, in that respect, a pre-Guidelines
sentence."), cert. denied, 112 S. Ct. 1960 (1992); United
States v. Gomez-Pabon, 911 F.2d 847, 862 (1st Cir. 1990) ("In
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a pre-Guidelines case, the sentencing judge has very broad
discretion in determining the appropriate punishment in a
particular situation. . . . An appellate court will
ordinarily not review a sentence unless it exceeds statutory
limits or 'is so disproportionate to the offense for which it
was imposed that it constitutes cruel and unusual
punishment.'") (citations omitted), cert. denied, 111 S. Ct.
801 (1991). Our pre-Guidelines cases recognized only a
"narrow exception" to this general rule. We would overturn a
sentence if the sentencing court had taken "a rigid,
mechanistic approach" to sentencing, and had not considered
"the individual mitigating circumstances" of the defendant.
United States v. Bernal, 884 F.2d 1518, 1520 (1st Cir. 1989)
(citation omitted). The presentence report
indicates that Salazar's fine of $100,000 was well within the
applicable statutory maximum ($250,000). Accordingly, even
if Salazar had been indigent at the time he was sentenced,
this court would have no basis for reviewing or overturning
his fine unless the court had sentenced him in a "rigid,
mechanistic" fashion. The record before us gives us no
reason to think that the sentencing court imposed Salazar's
fine without considering his individual circumstances.
Salazar pled guilty to cocaine charges, and the
government recommended the maximum term of twenty years in
prison and the maximum fine of $250,000. The plea agreement
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was non-binding and gave Salazar the right to argue for a
lesser sentence. He appears to have done so. His
submissions to this court include a letter written by him
which is dated January 21, 1987, the date he was sentenced.
In the letter, Salazar told the court that he did not own a
house or other property and that the value of his possessions
was less than $10,000. Salazar's presentence report
indicated that a year or two before sentencing Salazar had
received $40,000 for selling a house which he had owned for
ten years. The presentence report confirmed that Salazar's
known assets were under $10,000. It reported that Salazar
had been employed regularly before his arrest and that he had
indicated that he earned $7/hour when employed. It further
noted that drug records showing sales of over $1 million were
found in an apartment which Salazar had lived in shortly
before his co-defendants were arrested and which Salazar had
vacated shortly thereafter, although the records were not in
Salazar's handwriting. At sentencing, the district court
imposed a fine of $100,000, less than half the $250,000
permitted by the statute and recommended by the government.
According to Salazar, the district court chose that amount
because Salazar's co-defendants had stated that they had paid
him $100,000 for cocaine in 1984.
From the above, it appears that the court did take
into account the particular facts relating to Salazar's
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situation. It did not impose the maximum fine, but imposed a
fine reflecting the amount of Salazar's illegal proceeds.
Although, obviously, money received by Salazar in 1984 might
well have no longer been in his possession as of 1987 when he
was sentenced, he had also received $40,000 in 1985 or 1986
for the sale of his house and he appeared to be able to
obtain employment on a regular basis. In addition, the court
reasonably might have believed that the drug records showing
sales in excess of $1 million found in an apartment recently
occupied by Salazar, though not in Salazar's handwriting,
reflected Salazar's cocaine receipts.
In light of the above, it is clear that Salazar's
fine did not violate the Eighth Amendment prohibition against
cruel and unusual punishment. See United States v. Pilgrim
Market Corporation, 944 F.2d 14, 22 (1st Cir. 1991) (a fine
of less than one-half the statutory maximum and one-half the
government's recommended fine was not excessive under the
Eighth Amendment); United States v. Bernal, 884 F.2d 1518,
1520-21 (1st Cir. 1989) (a 30-year prison sentence imposed on
a 62-year old defendant was not cruel and unusual punishment
because it was within the statutory maximum established by
the legislature as appropriate punishment for the offense);
United States v. Dixon, 538 F.2d 812, 814 (9th Cir.)
(imposing a committed fine was not cruel and unusual
punishment), cert. denied, 429 U.S. 959 (1976).
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The judgment of the district court is affirmed.
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