United States v. Cifuentes Riascos

USCA1 Opinion

        October 10, 1996        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1035



                                    UNITED STATES,



                                      Appellee,



                                          v.



                               HENRY CIFUENTES-RIASCOS,



                                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



                                Torruella, Chief Judge,
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                          Selya and Stahl, Circuit Judges.
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            Benico Sanchez  Rivera, Federal Public  Defender, and Miguel  A.A.
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        Nogueras-Castro,  Assistant  Federal  Public  Defender,  on brief  for
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        appellant.

            Guillermo Gil, United  States Attorney, Warren Vazquez and  Nelson
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        Perez-Sosa,  Assistant United  States  Attorneys, and  Jose A.  Quiles
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        Espinosa, Senior Litigation Counsel, on brief for appellee.
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                      Per Curiam.   Defendant was  convicted of  unlawful
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            re-entry  by  a deported  alien in  violation  of 8  U.S.C.



            1326(b)(2).  He was sentenced  to 100 months imprisonment and



            fined $500.  On appeal he argues for the first  time that the



            district court erred in imposing the fine where the defendant



            was financially  unable to pay.   This  objection not  having



            been made below, it  is reviewed for  plain error only.   See
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            United  States  v. Peppe,  80 F.3d  19,  22 (1st  Cir. 1996).
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            After careful review of  the parties' briefs and the  record,



            we find no error.



                      The  sentencing guidelines provide that a fine must



            be imposed  within a  specified range  unless a  defendant is



            unable  to  pay.    See  U.S.S.G.     5E1.2(a)(b).    When  a
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            sentencing court  finds a  defendant unable  to pay  the fine



            established by the guidelines, "the court may impose a lesser



            fine or  waive the  fine."  U.S.S.G.    5E1.2(f).   Here, the



            district court expressly found that, based on the defendant's



            financial  condition, "the  imposition of  a fine  within the



            required range is  not viable,"  and, instead  of imposing  a



            fine  within the  applicable  range of  $10,000 to  $100,000,



            fined  the defendant $500.   The court was  authorized by the



            guidelines to do so.  See U.S.S.G.   5E1.2(f).   There was no
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            plain error.   Cf. United States v. Rivera, 68 F.3d 5, 8 (1st
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            Cir. 1995)  (no  plain  error  in imposing  fine  well  below











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            guideline minimum where  defendant lacked apparent source  of



            funds).



                      Affirmed.  See Loc. R. 27.1.
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