DocketNumber： 92-1409
Filed Date： 12/11/1992
Status： Precedential
Modified Date： 9/21/2015
December 11, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1409
UNITED STATES,
Appellee,
v.
ANGEL PEREZ MORALES, a/k/a TATO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Angel Perez Morales on brief pro se.
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Daniel F. Lopez-Romo, United States Attorney, Robert S. Mueller,
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III, Assistant Attorney General, Mary Lee Warren, Chief, Lena D.
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Mitchell and William H. Kenety, Attorneys, Narcotic and Dangerous Drug
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Section, Criminal Division, Department of Justice, on brief for
appellee.
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Per Curiam. Angel Perez Morales (defendant) appeals
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from the denial of his motion for correction of sentence
under former Fed. R. Crim. P. 35(a).1 We find no error and
therefore affirm.
Defendant was one of thirty-nine persons charged in 1987
with various offenses involving the importation of controlled
substances from Colombia. In April 1988, defendant was
convicted of four such offenses: conspiring to import
marijuana and cocaine (Count One), aiding and abetting the
importation of marijuana and the importation of cocaine
(Counts Two and Seven), and aiding and abetting the
possession of cocaine with intent to distribute (Count
Eight). At sentencing, he received consecutive five-year
prison terms on each count and a $10,000 fine on Count One.
On appeal, this court reversed defendant's conviction on
Count Seven while affirming the other three. United States
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1. Applicable to offenses committed prior to November 1,
1987, former Fed. R. Crim. P. 35 reads in pertinent part as
follows:
(a) Correction of Sentence. The court may
correct an illegal sentence at any time and may
correct a sentence imposed in an illegal manner
within the time provided herein for the reduction
of sentence.
(b) Reduction of Sentence. A motion to
reduce a sentence may be made ... within 120 days
after the sentence is imposed ..., or within 120
days after receipt by the court of a mandate issued
upon affirmance of the judgment or dismissal of the
appeal, or within 120 days after entry of any order
or judgment of the Supreme Court denying review of
... a judgment of conviction ....
v. Aponte-Suarez, 905 F.2d 483 (1st Cir. 1990), cert. denied,
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111 S. Ct. 975 (1991).
On June 3, 1991 (104 days after the denial of certiorari
on February 19), defendant through counsel filed a motion for
reduction and correction of sentence under former Rule 35.
This motion primarily challenged the length of imprisonment
but also sought remission of the $10,000 fine due to an
alleged inability to pay. The district court summarily
denied the motion on July 2, 1991, and no appeal was taken.
On October 25, 1991 (248 days after the denial of
certiorari), defendant filed the instant pro se motion under
Rule 35(a) to correct an illegal sentence. His central claim
is that the district court, in imposing the fine, failed to
consider the factors enumerated in 18 U.S.C. 3622 (repealed
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as of November 1, 1987).2 The district court denied the
motion due to lack of jurisdiction, and this appeal followed.
We agree with the district court's disposition. The
time limitations imposed by Rule 35 are jurisdictional in
nature. United States v. Addonizio, 442 U.S. 178, 189
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(1979). Defendant's motion failed to comply with those
limitations. Accordingly, only if the fine here was an
"illegal sentence" (which may be corrected "at any time")--as
opposed to one "imposed in an illegal manner" (which is
subject to the 120-day limitation)--would the district court
have had jurisdiction to award relief. Yet defendant's
challenge is not to the legality of the fine per se:
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2. 18 U.S.C. 3622(a) provided in pertinent part as
follows:
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; [and]
(7) the need to deprive the defendant of
illegally obtained gains from the offense ....
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[A]n "illegal sentence" is one which is ambiguous
with respect to the time and manner in which it is
to be served, is internally contradictory, omits a
term required to be imposed by statute, is
uncertain as to the substance of the sentence, or
is a sentence which the judgment of conviction does
not authorize.
United States v. Ames, 743 F.2d 46, 47 (1st Cir. 1984) (per
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curiam), cert. denied, 469 U.S. 1165 (1985); accord, e.g.,
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United States v. Becker, 536 F.2d 471, 473 (1st Cir. 1976);
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8A Moore's Federal Practice 35.06[3], at 35-55 (1992)
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("illegal sentences are essentially only those which exceed
the relevant statutory maximum limits or violate double
jeopardy or are ambiguous or internally contradictory"). The
fine here suffers from none of these deficiencies. It was
well below the statutory maximum of $250,000 and was not
otherwise contrary to applicable law. Instead, any failure
by the district court to consider the 3622(a) factors would
render the fine one "imposed in an illegal manner." Cf.
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United States v. Celani, 898 F.2d 543 (7th Cir. 1990) (per
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curiam) (in Rule 35(a) context, allegation that court failed
to consider required statutory criteria in ordering
restitution is a challenge, not to the legality of the
sentence itself, but to the manner in which it was imposed).
Defendant's motion is thus barred by the 120-day limitation.
We note that, even if there were no jurisdictional bar,
defendant's challenge to the fine would appear meritless.
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The district court was not required to make specific written
or oral findings relating to the 3622(a) factors. See,
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e.g., United States v. Wilfred American Educ. Corp., 953 F.2d
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717, 720 (1st Cir. 1992). Nor will we "presume that the
district court declined to consider the relevant section
3622(a) evidence contained in the record." Id. at 719. Here
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the pre-sentence report contained information on the
principal factors identified by the statute. The only
potentially significant factor not discussed is the need to
deprive a defendant of illegal gains and omission of such
discussion, presumably on the ground that it was not
relevant, hardly prejudiced defendant here. What remains of
defendant's argument is a disagreement with the district
court's exercise of its judgment.
Affirmed.
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United States v. Addonizio , 99 S. Ct. 2235 ( 1979 )
united-states-v-emigdio-aponte-suarez-united-states-of-america-v-angel , 905 F.2d 483 ( 1990 )
United States v. Roy C. Ames , 743 F.2d 46 ( 1984 )
United States v. Donna Becker , 536 F.2d 471 ( 1976 )
United States v. Frederick George Celani , 898 F.2d 543 ( 1990 )