DocketNumber： 91-2297
Filed Date： 8/10/1992
Status： Precedential
Modified Date： 9/21/2015
August 10, 1992 [NOT FOR PUBLICATION]
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No. 91-2297
UNITED STATES,
Appellee,
v.
RAMON SANTANO CAMACHO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Ramon Santana Camacho on brief pro se.
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Daniel F. Lopez Romo, United States Attorney, and Edwin O.
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Vazquez, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Following his conviction on two counts of
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bringing an illegal alien into the United States, in
violation of 8 U.S.C. 1324(a)(1)(A), defendant Ramon
Santana-Camacho was sentenced to two consecutive terms of
five years in prison. He also received fines totalling
$250,000. As the offenses occurred in 1986, those fines were
imposed pursuant to former 18 U.S.C. 3623(a) (repealed as
of November 1, 1987). See United States v. Wilfred American
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Educ. Corp., 953 F.2d 717, 719 n.1 (1st Cir. 1992) (reciting
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statutory history). His conviction was affirmed on appeal.
United States v. Santana-Camacho, 931 F.2d 966 (1st Cir.
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1991). Defendant thereafter brought a timely motion under
former Fed. R. Crim. P. 35(a) for correction of sentence,
claiming that the fines had been illegally imposed. He
alleged, inter alia, that the court had failed properly to
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consider his "income, earning capacity, and financial
resources," as required by 18 U.S.C. 3622(a)(3).1 In
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1. 18 U.S.C. 3622(a) provided in relevant part:
(a) In determining whether to impose a fine and the
amount of a fine, the court shall consider, in
addition to other relevant factors--
(1) the nature and circumstances of the
offense;
(2) the history and characteristics of the
defendant;
(3) the defendant's income, earning capacity,
and financial resources;
(4) the burden that the fine will impose upon
the defendant, any person who is financially
dependent on the defendant, or any other person
(including a government) that would be responsible
for the welfare of any person financially dependent
on the defendant, relative to the burden that
alternative punishments would impose;
(5) any pecuniary loss inflicted upon others
as a result of the offense;
(6) whether restitution is ordered and the
amount of such restitution;
(7) the need to deprive the defendant of
illegally obtained gains from the offense ....
particular, he contended (1) that this provision necessitated
a finding that he was or reasonably would be able to pay the
fines levied, and (2) that the court's implicit finding in
this regard was unsupported by the record. From the denial
of this motion, defendant now appeals.
We find no error. "There is no abuse of discretion when
the court had before it information bearing on all the
relevant factors, including facts necessary to consider
imposition of a substantial fine, absent a record showing the
court refused to consider the section 3622(a) factors."
United States v. Weir, 861 F.2d 542, 545 (9th Cir. 1988),
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cert. denied, 489 U.S. 1089 (1989). The district court here
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had information pertaining to each of the pertinent criteria,
including defendant's financial status. The court clearly
considered each criterion; in fact, it has done so twice,
first at sentencing and then in response to the instant
motion. In balancing those factors, the court acted well
within its discretion, particularly given defendant's
prominent role in the smuggling organization and the need to
deprive him of illegally obtained gains. And the fact that
the fines imposed were only half of the statutory maximum
reflects an appreciation by the court of defendant's
financial status. See, e.g., United States v. Pilgrim Market
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Corp., 944 F.2d 14, 23 (1st Cir. 1991).
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We need not decide whether 3622(a) requires the court,
not only to consider a defendant's financial condition, but
to ensure that any fine imposed is reasonably consistent with
his present or future ability to pay. Assuming arguendo that
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such a requirement can be read into the statute, we think the
fines here are consistent therewith. To be sure, defendant
appears to lack the present ability to pay $250,000. The
presentence report (PSI) listed his net worth as $26,000.
Furthermore, contrary to the government's suggestion, the
record provides little reason to believe that defendant
possessed, or had access to, substantial additional assets
that were not disclosed. Such a finding "must be reasonably
supported by probative evidence." United States v. Rowland,
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906 F.2d 621, 624 (11th Cir. 1990). Yet the PSI stated there
was "no evidence that the defendant amassed great quantities
of money as a result of his criminal activity." Both his
trial and appellate counsel were appointed. See U.S.S.G.
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5E1.2, comment (n.3). When arrested, he was renting a $60
per month apartment from his niece. And there was nothing in
the record otherwise suggestive of hidden assets, such as an
"extravagant lifestyle," United States v. Nazifpour, 944 F.2d
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472, 475 (9th Cir. 1991) (per curiam), or "significant
unexplained expenditures." U.S.S.G. 5E1.2, comment (n.6).
Nonetheless, as indicated by the reference in
3622(a)(3) to "earning capacity," a defendant's future
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ability to pay is part of the equation. In contending that
he has no realistic prospect of paying the fines, defendant
points to his self-described work history, which consists
principally of construction, masonry and factory jobs. He
suggests that such work, while not insubstantial, is unlikely
to yield the level of income that would permit payment of the
fines. Yet this argument ignores the evidence that defendant
created and headed a smuggling organization comprising some
160 members, including recruiters, transporters, boat
captains, and police personnel. Given the skills necessarily
entailed in such an endeavor, and given defendant's age (46),
we think defendant has "at least a hope" of being able to pay
the fines imposed. United States v. Mahoney, 859 F.2d 47, 52
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(7th Cir. 1988) (restitution order). Should this prediction
prove faulty, and should the government seek to incarcerate
him for nonpayment, defendant would have ample administrative
remedies at his disposal. See, e.g., United States v. Levy,
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897 F.2d 596, 598 (1st Cir. 1990); Santiago v. United States,
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889 F.2d 371, 373-74 (1st Cir. 1989) (per curiam); see also
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United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)
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("an indigent defendant cannot be held in prison for failure
to pay a fine").
Affirmed.
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United States v. Pilgrim Market Corporation, United States ... , 944 F.2d 14 ( 1991 )
United States v. Wilfred American Educational Corporation , 953 F.2d 717 ( 1992 )
United States v. Ramon Santana-Camacho , 931 F.2d 966 ( 1991 )
Ariel Santiago v. United States , 889 F.2d 371 ( 1989 )
United States v. Timothy Alexander Levy , 897 F.2d 596 ( 1990 )
United States v. Rafael Jesus Dominguez, United States v. ... , 951 F.2d 412 ( 1991 )
United States v. Clinton Dennis Mahoney , 859 F.2d 47 ( 1988 )
United States v. James Michael Rowland , 906 F.2d 621 ( 1990 )
United States of America, Cross-Appellant v. John L. Weir, ... , 861 F.2d 542 ( 1988 )