United States v. Impemba ( 1994 )

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April 29, 1994 [NOT FOR PUBLICATION]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
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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